HomeMy WebLinkAbout00 163 Water/Sewage Renewal
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TIlE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
BY-LAW
NO. 2000 -163
BEING A BY-LAW TO RENEW WATER AND SEWAGE AGREEMENTS
WITH THE ONTARIO CLEAN WATER AGENCY FOR SCOTT POINT
WATER SUPPLY, UNDERWOOD WATER SUPPLY, TIVERTON
WASTEWATER, TIVERTON WATER SUPPLY AND INVERHURON
WASTEWATER
WHEREAS the Council for The Municipality of Kincardine deems it advisable to
renew the existing Agreements with Ontario Clean Water Agency (OCWA) for a
period of three (3) calendar years effective January 1, 2001 for the provision of
management, operation and maintenance of a water supply facility in Scott Point
Water Supply, Org. Unit #5055, Underwood Water Supply, Org. Unit #5056,
Tiverton Water Supply, Org. Unit #6075 and for the provision of management,
operation and maintenance of a wastewater disposal system in Tiverton
Wastewater Collection System, Org. #6072, and Inverhuron Wastewater
Collection System, Org. Unit #6618.
NOW THEREFORE the Council for The Corporation of the Municipality of
Kincardine ENACTS as follows:
1. That the Corporation of the Municipality of Kincardine renew the existing
agreements with Ontario Clean Water Agency (OCWA) for a period of three
(3) calendar years effective January 1, 2001 for the provision of management,
operation and maintenance of a water supply facility in Scott Point Water
Supply, Org. Unit #5055, Underwood Water Supply, Org. Unit #5056, Tiverton
Water Supply, Org. Unit #6075 and for the provision of management,
operation and maintenance of a wastewater disposal system in Tiverton
Wastewater Collection System·, Org. #6072, and Inverhuron Wastewater
Collection System, Org. Unit #6618.
2. That the Mayor and Clerk be authorized to sign, on behalf of The Corporation
of the Municipality of Kincardine, the renewal Agreement with Ontario Clean
Water Agency attached to this by-law and to affix the corporate seal as and
when required.
3. This By-law shall come into full force and effect upon its final passage.
4. This By-law may be cited as the ·OCWA Water and Sewage Agreement
Renewal, By-law".
READ a FIRST, SECOND and THIRD time and DEEMED TO BE PASSED
this 20th day of December, 2000.
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SERVICES AGREEMENT
THIS AGREEMENT effective as of the first day of January, 2001,
BETWEEN:
ONTARIO CT.FAN WATER AGENCY/AGENCE ONT ARTENNE
DES EAux. a corporation established under the Cl1,pita1Investment Plan
Act. 1993. chapter 23, Statutes of Ontario
(referred in this Agreement as "OCW A")
AND
THE CORPORATION OF THE MUNICIPALITY OF
KINCARDINE.
(referred in this Agreement as the "Client")
RECITALS
(a) OCWA is in the business of providing operation and maintenance services for water and
wastewater facilities.
(b) The Client is the owner of the facility more particularly described in Schedule A, (the
"Facility") pursuant to a transfer under the Municinal Water and SeW1U!e Transfer Act.
1997.
(c)
The Client wishes to retain the services of OCW A to operate and maintain the Facility in
accordance with the provisions of this agreement (the "Agreement").
(d)
The Client and OCW A (collectively, the "Parties") are entering this Agreement to clarify
and set out their respective rights and obligations with respect to the operation,
maintenance, invoicing and payment arrangements for the Facility.
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The council of the Client on the.diL.. day of .l..}(!{e",~,. , l-99_passed by-law No.
JDfJO - I ¡, ~ authorizing the Client to enter into this Agreement.
(e)
NOW THEREFORE in consideration of the mutual covenants contained in this
Agreement and other good and valuable consideration the receipt and sufficiency of which is
hereby irrevocably acknowledged, the Client and OCW A agree as follows:
ARTICLE 1 -INDEX TO DEFINITIONS
Section 1.1 - Defmitions
In this Agreement, definitions are set out in Schedule B, or with applicable provisions, as
indicated.
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ARTICLE 2 - RESPONSIBILITIES OF OCW A
Section 2.1 - Retention of OCW A
The Client retains OCW A to provide management, operation, administration and
maintenance services (as further described in Schedule "C" to this Agreement) in respect of the
Facility (the "Services").
Section 2.2 - Performance of Services
(a) OCW A shall operate the Facility in compliance with all Applicable Laws, regulations and
Authorizations except as described in Paragraphs 2.2(b) and (c) below and in any of the
following circumstances:
(i) the Client not making the Capital Expenditures reasonably recommended by
OCW A in the Estimate as described under Section 4.2 below;
(ü) mechanical failure of any equipment at the Facility unless the mechanical failure
is due to negligent maintenance by OCW A;
(iii) the wastewater transmitted to the Facility for treatment does not meet the
requirements of the Client's sewer use by-law or any Applicable LaW;
(iv) the quantity of wastewater transmitted to the Facility exceeds the Facility's
design capacity.
(b) OCW A may temporarily cease to provide or reduce, the level of provision of Services
hereunder in the event of an emergency, a breakdown or any Uncontrollable Circumstance;
provided, however, that OCW A shall, when practicable, endeavour to give the Client reasonable
advance notice of each such occurrence.
(c) Notwithstanding any other provision of this Agreement, delay in the performance of, or a
failure to perform any term of this Agreement by OCW A, shall not constitute default under this
Agreement or give rise to any claim for damages suffered by the Client if and to the extent
caused by occurrences or circumstances beyond the reasonable control of OCW A, including but
not limited to the wastewater transmitted to the Facility for treatment not meetimg the
requirements of the Client's sewer use by-law or any Applicable Law; the wastewater transmitted
to the Facility for treatment containing contaminants or other substances which cannot be treated
or removed by the Facility's processes; the quantity of wastewater transmitted to the Facility
exceeding the Facility's design capacity, decrees of government, acts of God (including but not
limited to hurricanes, tornadoes, floods and other weather disturbances), sabotage, strikes,
lockouts and other industrial disturbances, insurrections, war, civil disturbances, riots,
explosions, fire and acts of third parties (any such occurrence or circumstance is referred to as an
"Uncontrollable Circumstance").
(d) OCW A, in its discretion, may take remedial measures that it determines are reasonably
necessary to attempt to maintain compliance with Applicable Laws. Within the context of
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Section 2, such measures may be beyond the Services and as such, would be part of the Actual
Charges incurred pursuant to Section 4.4. OCW A shall use its best efforts to contact the Client
and obtain the Client's approval prior to undertaking such remedial measures.
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(e) Notwithstanding Paragraph 2.2(d) above, the Client recognizes that such remedial
measures taken by OCW A may be as a result of an emergency situation or an Uncontrollable
Circumstance and that in such situations OCW A's primary concern will be making all reasonable
efforts to maintain compliance with Applicable Laws.
Section 2.3 - Excluded Services
Any services not set out in the Services are excluded from this Agreement (the
"Excluded Services") and, without limiting the generality of the foregoing, those services set out
in Schedule D are examples of Excluded Services. If the Client subsequently requires OCW A to
provide the Excluded Services, the Excluded Services may be provided at additional cost to the
Client.
Section 2.4 - Standard of Care
OCW A shall deliver the Services as would a reasonable operator with like skills in like
circumstances.
. Section 2.5 - OCW A as Indeuendent Contractor
In performing the Services, OCW A shall be acting as an independent contractor and only
to the extent and for the specific purposes expressly set forth herein. Neither OCW A nor its
employees, agents or subcontractors shall be subject to the direction and control of the Client,
except as expressly provided in this Agreement.
Section 2.6 - Authorized Representatives
Each of OCW A and the Client shall be entitled to designate in writing to the other one or
more individuals who shall be authorized to represent it in connection with the day-to-day
administration of the provisions of this Agreement (the "Authorized Representatives"). Each of
the parties shall be entitled to rely on the acts and approvals given by the other party's Authorized
Representative until such time as it receives a written notification of change in the other party's
Authorized Representative.
Section 2.7 - Reportinl!:
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OCW A shall provide the following reports to the Client:
(a)
a facility performance report, within thirty Business Days of the completion of each
calendar quarter or such other period as the Client and OCW A may agree upon.
(b)
a summarized financial report on a quarterly basis indicating expenditures to date and
funds remaining; and
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(c) an annual report summarizing relevant activities and maintenance operations, actual
expenditures, laboratory analyses, treatment results, water quality, sludge utilization and
safety activities and any special studies.
· Section 2.8 - Indemnification of the Client
OCW A shall exonerate, indemnify and hold harmless the Client, its directors,officers,
employees and agents fÌ'om and against any and all Claims which may be suffered or incurred by,
accrue against or be charged to or recoverable fÌ'om the Client that are caused by OCW A's
negligence or wilful misconduct when performing the Services. The Client shall be deemed to
hold the provisions of this Section 2.8 that are for the benefit of the Client's officers, employees
and agents in trust for such officers, employees and agents as third party beneficiaries under this
Agreement.
Section 2.9 . Insurance
(a) OCWA shal1 arrange for insurance coverage of the Facility as described in Schedule E to
this Agreement (the "Insurance") and, with the exception of automobile insurance, the Client
shall be an additional insured under such coverage. If there is a significant change in the
insurance coverage described in Schedule E, the Client will be notified of such change.
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(b) The Client may, at its cost, maintain additional insurance in respect of the Facility ifit
wishes and OCW A shall be an additional insured under such insurance.
(c) The Client shall be responsible for securing its own insurance for any operations with
which it is involved or which are Excluded Services that are not the subject of this Agreement.
The Client acknowledges that it will have no recourse under OCW A's policies of insurance for
any such operations.
(d) In the event of a claim under the Insurance, the payment of deductibles is as specified in
Schedule E.
Section 2.10 - ReJ)resentations and Warranties of OCW A
OCW A represents and warrants to the Client that the following are true and correct:
(a) that it has full power and authority and has taken all necessary steps to enter into and
perform its obligations under this Agreement; and
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(b) OCW A's staff are trained and capable of carrying out the terms of this Agreement.
ARTICLE 3 - RESPONSmILITIES OF THE CLIENT
Section 3.1 - Renresentations and Warranties of the Client
The Client represents and warrants to OCW A that:
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(a)
The Client has the full power and authority to enter into and perform its obligations under
this Agreement, including but not limited to, the power and the authority to pay the
Estimate, the Actual Charges, the Management Fee and any other costs that OCW A may
incur in performing the Services, when due and payable under this Agreement.
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(b)
The Client has passed all necessary by-laws and obtained all necessary Authorizations to
enable it to enter into and perform its obligations under this Agreement and to operate the
Facility, including without limitation, any Authorizations required iÌ'Om the Ontario
Municipal Board, and each of the Authorizations is in good standing.
( c) The Client has provided OCW A with a true copy of each of the Authorizations referred to
in Paragraph 3.1 (b) above, prior to the date of execution of this Agreement, including a
certified copy of each municipal by-law and other approval required to authorize the
Client to enter into and perform its obligations under this Agreement.
(d) As owner of the Facility the Client is fully aware of its responsibilities and obligations
and, as part of its due diligence in operating the Facilities, has selected OCW A as operator
to provide the Services.
Section 3.2 - Covenants or the Client
The Client hereby covenants for the benefit of OCW A:
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(a)
The Client agrees to promptly provide OCW A with any information relating to the
Facility which could have a bearing on the provision of Services by OCW A.
(b) The Client shall repair, maintain and keep in a good working state, in accordance with
good engineering practices and the standards reasonably applicable to an owner of a like
facility, all wastewater that belong to or are under the control of the Client and that collect
and transmit wastewater to the Facility.
( c) The Client shall take reasonable steps to ensure that wastewater transmitted to the Facility
complies with the Client's sewer use by-law presently in force.
Section 3.3 - Indemnification of OCW A
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(a) Subject to Paragraph 3.3(c) below, the Client shall exonerate, indemnify and hold
harmless OCW A, its directors, officers, employees and agents and Her Majesty the Queen in
Right of Ontario, as represented by the Minister of the Environment and all officers, employees
and agents of the Ministry of the Environment (collectively referred to as the "Indemnified
Parties") ITom and against any and all Claims which may be suffered or incurred by, accrue
against, or be charged to or recoverable iÌ'Om anyone or more of the Indemnified Parties that, in
any way, either arise iÌ'Om or are connected with the operation of this Agreement.
(b) OCW A shall be deemed to hold the provision of this Section 3.3 that are for the benefit
of OCW A's directors, officers, employees and agents and the other Indemnified Parties as
defined above, in trust for all such Indenmified Parties as third party beneficiaries under this
Agreement.
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(c) Notwithstanding the other provisions of this Section 3.3, the Client shall not be liable in
respect of any Claim:
(i) to the extent that such Claim is covered by a policy of insurance put in place by
OCW A and/or the Ministry of the Environment, the premiums of which
were paid for by the Client; or
(ii) where the Claim arose solely as the result of OCW A's negligence or wilful
misconduct in providing the Services.
ARTICU; 4 - TERM. PAYMENT FOR SERVICES AND OTHER CHARGES
Section 4.1 - Initial Term of Ap-eement
This Agreement shall start on January 1,2001, and shall continue in effect for an initial
term of three years (the "Initial Term") and then shall be renewed for successive three year terms
unless terminated under Section 6.2 of this Agreement.
Section 4.2 - Estimate
No later than September 30th of each year of the Initial Term, OCWA shall prepare and
submit to the Client, for its approval, an estimate of the charges associated with the provision of
the Services for the following calendar year, including a list of the Capital Expenditures required
for the operation of the Facility for the following year. The Client will inform OCW A no 1ater
than December 1st whether the estimate is approved (the approved estimate is referred to as the
"Estimate"). The Estimate, shall be OCW A's authorization to incur the expenditures in the
Estimate. The Estimate for the first year of the Initial Term is $7,448.00.
Section 4.3 - P~ment of the Edimate
The Client shall pay OCW A the Estimate for the Initial Term, in twelve monthly
payments, in advance on the first day of each month. Each monthly payment shall be $620.67.
The first payment shall be due and payable onJanuary 1,2001. Payment shall be made by the
Client by pre-authorized debit from an account designated by the Client.
Section 4.4 - Reconciliation of the Edimate and Actual ChaNe!
At the end of each calendar year, OCW A will determine the actual charges for providing
the Services to the Client for that year (the" Actual Charges"). If the Estimate paid by the Client
for the year exceeds the Actual Charges, OCW A will pay the Client the difference within thirty
days of OCW A making the determination. If the Actual Charges exceed the Estimate paid by the
Client, the Client shall pay OCW A the difference within thirty days of OCW A notifying the
Client in writing of the determination.
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Section 4.5 - Other Chan:es
The Estimate, as reconciled with the Actual Charges, includes all charges associated with
providing the Services, except for the following:
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(a)
OCW A's Management Fee (as described in Section 4.6 below); and
(b) Unexpected Expenses (as described in Section 4.7 below).
Section 4.6 - Mana2ement Fec
(a) In addition to payment of the Estimate, as reconciled with the Actual Charges, the Client
shall also pay OCW A a fixed annual management fee of $800.00 (the "Management
Fee") for every year of the Initial Term. The Management Fee shall be paid by the Client
in twelve equal monthly instalments at the same time and in the same manner as the
Estimate.
(b)
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The Management Fee in any renewal term shall be as agreed by the Client and OCW A. If
the Client and OCW A cannot reach an agreement on the Management Fee for any
renewal term within six months of the beginning of the last year of the current term
(whether the Initial Term or a renewal term) (the "Current Term"), this Agreement will be
terminated six months ITom the last day of the Current Term. During this six month
period, the Client will pay the Management Fee paid for the last year of the Current Term,
as indicated above, pro-rated over the six month period.
(c) The Management Fee includes all additional charges prescribed by Regulation 157/93
under the Ontario Water Resources Act.
Section 4.7 - Une:s:\)eeted Exoen_
(a) "Unexpected Expenses" means unanticipated expenditures, including any Capital
Expenditures that OCW A reasonably incurs in order to address eqnipment failure, acts of
third parties, or other circumstances beyond OCW A's reasonable control (such as
unregulated septic dumping, illegal industrial waste discharges and overflows), an
emergency situation or any situation resulting ITom an Uncontrollable Circumstance.
(b)
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In the event that OCW A is required to incur Unexpected Expenses, the prior approval of
the Client with respect to those Unexpected Expenses will be required only if time
permits. Within ten days of incurring the Unexpected Expenses OCW A will provide the
Client with a report detailing the reasons the Unexpected Expenses were incurred and the
Client shall pay OCW A for the Unexpected Expenses immediately upon receipt of an
invoice ITom OCW A.
Section 4.8 - Interest on Late Pavments
If the Client's monthly payment of the Annual Price is not available in its designated
bank account on the agreed to date of payment, or if a certified cheque payable to the Ontario
Clean Water Agency, has not been received, OCW A will notify the Client that the fimds were not
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available. On the next Business Day, OCW A will again attempt to withdraw the monthly
payment. If funds are not available when the second attempt to withdraw funds is made, OCW A
will notify the Client that the payment is late, and in addition to paying the monthly payment
owing to OCW A, the Client shall pay OCW A interest at that rate determined by the Minister of
Finance, from time to time, as payable on overdue accounts, in accordance with the Financial
Administration Act plus any banking and ¡ldministrative charges.
Section 4.9 - Partial Pav:ment of Disputed Invoices
If the Client disputes any portion of an invoice, the Client shall nonetheless pay to
OCW A the undisputed portion of the invoice by the due date. If any additional amount is finally
determined to be payable to OCW A, the Client shall pay OCW A the additional amount, plus
interest as provided above in Section 4.8 above, within ten days from the date of final
determination.
ARTICLE 5 - DISPUTE RESOLUTION
Section 5.1 - Mediation
(a) If a dispute arises between the Client and OCW A which cannot be resolved within a
reasonable time, the issue shall be referred to a mediator.
(b)
The fees and expenses of the mediator will be divided equally between the Parties.
(c) Involvement in mediation is on a without prejudice basis and does not preclude and is not
a bar to either Party pursuing whatever legal remedies may be available, including
litigation.
ARTICLE 6 - EXISTING AGREEMENTS AND TERMINATION
Section 6.1 - EIistinl! A¡reements
(a) Subject to Paragraph 6. 1 (b) of this Agreement, any existing agreements between the
Client and OCW A or the Client and one of OCW A 's predecessors which deals with the
subject matter described in this Agreement (an "Existing Agreement") shall be
terminated.
(b)
Notwithstanding any other provisions in this Agreement and in particular Paragraphs
6.1(a) above, all financial obligations of the Client to OCWA or any ofOCWA's
predecessors under any Existing Agreement, including but not limited to the obligation of
the Client to pay any outstanding debt owed in respect of the Facility, shall remain in
effect until such time, if applicable, that new financing arrangements have been entered
into between the Client and OCW A.
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Section 6.2 - Termination of Asueement
(a)
At least twelve calendar months before the expiry of the Initial Term, the Client shall
notify OCW A in writing whether it wishes to renew or terminate this Agreement at the
end of the Initial Term or any Renewal Term. If no notice is given as required by this
section or the parties do not otherwise agree in writing then the Agreement shall renew
for a further five year period ("Renewal Term").
(b) During the Initial Term or any Renewal Term, this Agreement may be terminated by
either the Client or OCW A ("Termination for Cause") if:
(i) there has been a material breach of the Agreement; and
(ü) the party complaining of the breach has given written notice of the breach to the
other party; and
(iii) the other party does not correct the breach within thirty days of receiving the
notice.
(c)
Where there is a material breach and: (i) such material breach has not been corrected
within the time set out in Paragraph 6.2(b) above; (ii) the material breach has not been
referred to mediation pursuant to Section 5.1 of this Agreement; or (iü) the Parties have
not otherwise agreed in writing, then the complaining party may terminate this Agreement
by giving at least six months notice in writing to the other Party.
(d) If either Party disputes the existence of a breach or that the breach is material, the dispute
may be referred to mediation under Section 5.1 of this Agreement.
(e) After the Initial Term of this Agreement, either the Client or OCW A may terminate this
Agreement as follows:
(i) for any reason, upon twelve months prior written notice; or
(ii) if there has been a material breach of the Agreement, in accordance with the
procedure described in Paragraphs 6.2(b) and (c) above and Section 6.3 below.
Section 6.3· EarlY Termination
If there has been Termination for Cause, then the terminating party shall be paid its actual
costs up to the date of termination. Such costs may include, on the part of the Client, the costs of
retendering or hiring a replacement and temporary operator until a permanent operator can be
retained, and in the case of OCW A, the costs of demobilization.
Section 6.4 - Final Settlement
If OCW A ceases to operate and maintain the Facility, there shall be a final settlement of
all accounts with respect to the Actual Charges, Management Fee and any other charges and
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expenses incurred by ocw A and amounts owing by or to the Client under this Agreement and
any Existing Agreement, no later than ninety days after OCW A ceases to provide the Services.
ARTICLE 7 - INNOVATIONS
Section 7.1 - Innovations
Either Party may bring forward innovative ideas for the operation of the Facility and both
parties agree to reasonably consider such innovative ideas.
ARTICLE 8 - GENERAL
Section 8.1- Year 2000 ComDliance
(a)
The Parties represent and warrant that all proprietary and non-proprietary computer
hardware, software and firmware (including without limitation all telecommunications,
imbedded systems and premise technology), individually and in combination that are used
by each and that may impact the delivery or the quality of each party's respective
obligations under this Agreement or the ability each to provide accurate invoicing and
payment in respect of the Services (collectively the Parties' Systems), shall be "Year
2000 Compliant", meaning that the Parties' Systems:
(i) are designed to be capable of operating prior to, during and after the calendar year
2000 AD, without error or reduction in performance relating to date data,
specifically including any error relating to date data which represents or references
different centuries or more than one century;
(ii) are able to accurately manage, manipulate and process date and date-related data
(including but not limited to calculating, comparing, sequencing and sorting)
ftom, into and between the calendar years 1999 and 2000 AD. and ftom, into and
between the twentieth and twenty-first centuries (including leap year calculations);
and
(iii) shall not abnormally terminate or provide invalid or incorrect results due to date
or date-related data, specifically including date data which represents or references
different centuries or more than one century.
(b)
At either Party's request, the other shall, at no charge to the requester, demonstrate the
compliance techniques and test procedures to be followed by such party to confirm that
the its systems are Year 2000 Compliant in accordance with paragraph (a).
(c) Either Party shall cause all subcontractors to comply with paragraph (a) with respect to
any component of its Systems to be provided by such subcontractors.
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(d) Each Party represents and warrants that the meeting of its obligations under this
Agreement shall not be interrupted due to the failure of those systems which support the
operation of its business to be Year 2000 Compliant.
, Section 8.2 - A2reement to Govern
If there is any inconsistency between this Agreement and any Schedule to this Agreement,
this Agreement shall govern.
Section 8.3 - Ownershin of Technolol!V
The Client acknowledges and agrees that in providing the Services, OCW A may utilize
certain technology developed by or for OCW A, whether existing now or in the future, including
but not limited to technology such as WMMS, Outpost 5 and PDC (the "Technology"). The
Client further agrees that the use of the Technology at the Facility does not in any way give the
Client any ownership rights in or Intellectual Property Rights to, the Technology.
Section 8.4 - Headinl!S
The division of this Agreement into Articles, Sections and Paragraphs and the insertion of
headings are for convenience of reference only and will not affect the construction or interpre-
tation of this Agreement.
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Section 8.S - Entire Allreement
This Agreement constitutes the entire agreement between the Client and OCW A with
respect to the subject matter hereof and cancels and supersedes any prior understandings and
agreements between the Client and OCW A with respect thereto except for the provisions of any
Existing Agreements that remain in effect in accordance with Section 6.1 of this Agreement.
There are no representations, warranties, terms, conditions, undertakings or collateral agree-
ments, express, implied or statutory, between the parties other than as expressly set forth in this
Agreement and in the provisions of the Existing Agreements which remain in effect in
accordance with Paragraphs 6.1 (b) and (c) of this Agreement.
Section 8.6 - Prooosal not Part of AIlreement
OCW A's proposal to the Client to operate the Facility shall not form part of this
Agreement.
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Section 8.7 - Amendments and Waivers
No amendment to this Agreement will be valid or binding unless it is in writing and duly
executed by both of the parties hereto. No waiver of any breach of any provision of this
Agreement will be effective or binding unless it is in writing and signed by the party purporting
to give such waiver and, unless otherwise provided, will be limited to the specific breach waived.
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Section 8.8 - Successors and AssillDS
This Agreement shall operate to the benefit of and be binding upon, the parties hereto and
their successors and assigns. This Agreement may be assigned in the discretion of either party.
Section 8.9 - Survival
All representations, warranties and indemnities given by each of the parties, shall survive
indefinitely the termination of this Agreement.
Section 8.10 - Severabilitv
If any covenant, obligation or provision hereof or the application thereof to any person or
circumstance shall, to any extent be invalid or unenforceable, the remaining provisions or the
application of each provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall continue to be valid and enforceable.
Section 8.11 - Notices
Any notice, or other communication required or permitted to be given hereunder by either
party to this Agreement shall be in writing and shall be delivered in person, transmitted by fax or
sent by registered mail, addressed as follows:
(i)
if to the Client:
Municipality of Kincardine
707 Queen Street
Kincardine, Ontario
N2Z lZO
Telephone:
Fax:
Attention:
(519) 396-3468
(519) 396-8288
Clerk
(ii) if to OCW A:
Ontario Clean Water Agency
3508 Wonderland Road South
London, Ontario
N6L lA7
Telephone:
Fax:
Attention:
(519) 652-7027
(519) 652-7020
Vice President,
Western/Central Area
(b)
If delivered in person or transmitted by fax, any such notice or other communication shall
be deemed to have been given and received on the day on which it was delivered or
transmitted (or, if such day is not a Business Day, on the next following Business Day).
(c)
If mailed, any such notice or other communication shall be deemed to have been given
and received on the third Business Day following the date of mailing; provide, however,
that if at the time of mailing or within three Business Days afterwards a labour dispute or
other event occurs, which might reasonably be expected to disrupt the delivery of
documents by mail, any notice or other communication hereunder shall be delivered or
transmitted by fax as provided in this Section 8.11.
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(d) A party to this Agreement may change its address for the purpose of this Section by
giving the other party notice of such change of address in the manner provided in this
Section.
· Section 8.12 - Counteiparts
This Agreement may be executed in counterparts, each of which shall constitute an
original and all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF the parties have duly executed this Agreement.
ONTARIO CLEAN WATER AGENCY
BY~ Id~ü
(Authorized Signatory)
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By:
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Date of Signing
(Authorized Signatory)
THE CORPORATION OF
THE MUNICIPALITY OF KINCARDINE,
Dee 2.0 .)0.0
Date of signing
By:
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(Authorized Si
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Date of Signing
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SCHEDULE A
THE FACILITY
INVERHURON SEWAGE FACILITIES
Part 1. Description ofthe Facility
For the purposes of this agreement, the Facility is comprised of the following:
A sanitary wastewater collection system, one sewage pumping station and associated forcemains.
Part 2. Legal Description of the Lands on which the Facility is Situated
The location of the Treatment Facility is as follows:
Part of Lot 20, R.P. 3R4448 Kincardine Twp.
Inverburon SeW8 ¡e Agreement - 00/12/08
SCHEDULE B
DEFINITIONS
·
In this Agreement, the following terms are defined below or in the section in which they first
appear:
"Actual Charges" is defined in Section 4.4 of this Agreement.
"Agreement" means this agreement together with Schedules A, B , C, D and E attached hereto
and all amendments made hereto by written agreement between OCW A and the Client.
"Applicable Laws" is to be broadly interpreted and means, with respect to any person, property,
transaction, event or other matter dealt with in this Agreement, any and all statutes, by-laws,
regulations, enactments, ordinances, rules, permits, consents, approvals, certificates of approval,
licences, judgments, orders, judicial decisions, common-law rules, decrees, injunctions,
agreements, authorizations, regulations, policies, guidelines, directives, objectives, whether
federal, provincial or municipal including, but not limited to all laws relating to occupational
health and safety matters, fire prevention and protection, health protection and promotion, land
use planning, environment, Building Code, or workers' compensation matters.
·
"Authorizations" means each of the sewer use and water by-laws, licences, certificates of
approval, permits, consents and other authorizations required under any law, regulation, by-law
or government policy in order to operate the Facility from time to time.
"Authorized Representative" is defined in Section 2.6 of this Agreement.
"Business Day" means a day other than a Saturday, Sunday or statutory holiday in Ontario.
"Capital Expenditures" means the charges for all capital items in relation to the Facility,
including new or replacement equipment, any overhaul or rebuild of equipment, any non-routine
repair; maintenance, (and excluding routine maintenance); any alterations and any associated
installations, commissioning, including labour and preselection charges, together with OCW A's
service fee.
"Claim" means any claim, fine, penalty, liability, damages, loss and judgement, (including but
not limited to, costs and expenses incidental thereto) of any kind or nature whatsoever.
"Current Term" is defined in Paragraph 4.6{b) of this Agreement.
· "Estimate" is defined in Section 4.2 of this Agreement.
"Excluded Services" is defined in Section 2.3 of this Agreement.
"Existing Agreements" is defined in Paragraph 6.1 (a) of this Agreement.
"Facility" means the wastewater collection facility as defined in the Background to this
Agreement and further described in Schedule A to this Agreement.
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"Indemnified Parties" is defined in Paragraph 3.3(a) of this Agreement.
"Initial Term" is defmed in Section 4.1 of this Agreement.
· "Insurance" is defined in Paragraph 2.9(a) and further described in Schedule E.
"Intellectual Property Rights" means any copyright, trademark, patent, registered design,
design right, topography right, service mark, application to register any of the aforementioned
rights, trade secret, rights in unpatented know-how, right of confidence and any other intellectual
or industrial property rights of any nature whatsoever in any part of the world.
"Management Fee" is defined in Paragraph 4.6(a) of this Agreement.
"Outpost 5" means a remote monitoring and control system designed and constructed by OCW A
and its consultants for the purpose of monitoring and controlling processes at water and
wastewater treatment facilities and their related parts.
"Parties" is defined in the Recitals.
"Parties' Systems" is defined in Paragraph 8.1 (a) of this Agreement.
"PDC" or "Process Data Collection" means technology that allows process data to be entered
· into a format that can be viewed, manipulated and retrieved in the form of customized reports.
"Renewal Term" is defined in Paragraph 6.2(a) of this Agreement.
"Services" is defined in Section 2.1 and further described in Schedule B to this Agreement.
"Technology" is defined in Section 8.2 of this Agreement.
"Termination for Cause" is defined in Paragraph 6.2(b) of this Agreement.
"Uncontrollable Circumstance" is defined in Paragraph 2.2(c) of this Agreement.
"Unexpected Expenses" is defined in Section 4.7 of this Agreement.
"WMMS" or "Work Management Maintenance System" means a computer program used to
determine a program of preventive maintenance activities for equipment in a facility based on a
risk analysis that considers factors such as equipment life expectancy, present value and
replacement cost.
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"Year 2000 Compliant" is defined in Section 8.1 of this Agreement.
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SCHEDULE C
THE SERVICES
Subject to the provisions of this Agreement, the Services are those services set out in this
Schedule.
1. ODeratinl! Duties
OCW A will perform regularly scheduled inspections and carry out associated operational duties
at the Facility, including all related equipment, buildings and property to ensure that the Facility
is operating effectively. Specifically, OCW A will:
Wastewater Collection
yearly, remove maintenancehole covers and inspect maintenance holes for flow through,
debris accumulation, structural stability of walls and rungs, infiltration and proper
benching;
flush maintenancehole and sewers once per year with hydrant water and remove sand and
debris;
routinely monitor wastewater collection system for infiltration, illegal connections and
illegal discharge of contaminants to system; and
sample raw wastewater routinely.
2.
Day-to-Day Maintenance
OCW A will provide routine maintenance of the Facility as would a reasonable operator.
Specifically, OCW A will:
carry out a routine lubrication program including greasing and oiling as specified in the
lubrication schedule;
perform routine maintenance duties to eqnipment by following the preventive measures
procedures; by checking machinery and electrical equipment when required and
overhauling of equipment;
maintain an inventory on all equipment and tools; and
ensure the security of the project by locking doors and gates.
3.
Capital ImJ)rovements
OCW A, acting as a reasonable operator, will record information on the frequency of
eqnipment breakdown and repair costs to determine replacement needs. Parts of the
Facility reqniring upgrading or improvement will be identified and brought to the
attention of the Client in accordance with Sections 4.2 or 4.7 of this Agreement.
4.
O~timization and Complillnce of O~eration
OCW A will routinely analyze, investigate and, where appropriate, implement measures to
improve the effectiveness and efficiency of the Facility.
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OCW A, acting reasonably, is responsible for ensuring an efficient operation of the
process and keeping records on a daily basis by:
Wastewater CoUection and Treatment
recording and analyzing wastewater flow, and electricity used;
calculating, recording, and analyzing the daily flows and monthly flows, and pumping
station running hours;
on a routine basis, completing the daily operating forms for statistics for computer input
and output forms and correcting the results of the output forms to ensure a proper
monitoring of plant flows and process;
collecting samples for bacterial and chemical analysis and ensuring that they are shipped
to the proper labs (analysis to ensure a representative analysis);
ensuring that the daily operations comply with and fulfill the requirements of the
Certificate of Approval and other legal documents; and
inspecting wastewater collection system for sources of infiltration or illegal discharge of
contaminants and working with client to resolve.
s.
Reøollltory Matters
OCW A will handle day-to-day regulatory requirements and contacts with regulatory
authorities in respect of operating issues concerning the Facility. OCW A will review any
inspection reports prepared by regulatory authorities that are provided to OCW A.
Subject to any approvals of the Municipality required by Section 4.2 of this Agreement,
OCW A will either correct deficiencies identified in such inspection reports or negotiate
changes to the reports with the regulatory authorities.
6.
Stamos
OCW A will staff the Facility with certified operators and other trained staff as required
by regulation under the Ontario Water Resources Act.
All OCW A staff at the Facility will be trained for the normal process operation and
maintenance of the Facility and will also received training on how to deal with emergency
situations should they arise. Staff will continue to receive training on an ongoing basis.
OCW A staff will be available to provide 24 hour coverage at the Facility in the event of
emergencies.
7.
Emel'l!ency Situations and Safety
OCW A will ensure that the Facility has a contingency plan in place to deal with
non-routine operational situations and emergency situations such as spills, by-passes,
overflows, hydro interruptions and equipment failure.
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SCHEDULE D
EXCLUDED SERVICES
The following services will n2! be provided by OCW A and are considered to be
"Excluded Services" for the purposes of this Agreement:
installation of new sewer services;
high pressure sewer flushing;
cost for non-routine sampling and lab analysis;
grass cutting
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SCHEDULE E
INSURANCE
A summary of the insurance coverage that OCW A will arrange for in respect of the Facility is
described below:
Prooerty Insurance
Perils:
Limits:
"All Risks" including earthquake and flood. Subject to policy
exclusions.
- $2,398,500,000 combined limit anyone loss, casualty, or disaster
- $2,398,500,000 annual aggregate offload claims
- $2,398,500,000 annual aggregate of earthquake claims
- Replacement Value (Subject to Annual Reports)
- $25,000,000 for extra expenses above and beyond regular costs
associated with running the operation
- Extra expenses associated with shutting down the business for up to
six weeks on interruption by Civil Authority
Deductibles: All Perils - $2,500 except earthquake and flood
Earthquake - the greater of $1 00,000 or 3%;
Flood - $25,000
Property
Insured:
Where the Client's property is repaired or replaced the Client will pay the
deductible. Where OCW A's property is repaired or replaced, OCW A will
pay the deductible. In cases where both the Client's and OCW A's property
is repaired or replaced, the deductible will be paid by both the Client and
OCW A pro rata in accordance with the total loss.
All reported properties including buildings and equipment situated within
1,000 feet of the premises. Includes pumping stations, excludes
underground sewer and water system.
Boiler and Machinerv Tnaurance
Coverage: Insures against loss or damage arising from an accident to scheduled
object in use or connected ready for use.
Objects:
Accident:
Limit:
Boilers, Pressure Vessels (Excess of 15PSI) Piping.
Sudden and accidental breakdown of an object which causes it physical
damage, requiring its repair or replacement.
Subject to policy exclusions.
$10,000,000 per loss.
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Deductibles: $2,500.
Where the Client's property is repaired or replaced the Client will pay the
deductible. Where OCW A's property is repaired or replaced, OCW A will
pay the deductible. In cases where both the Client's and OCWA's property
is repaired or replaced, the deductible will be paid by both the Client and
OCW A pro rata in accordance with the total loss.
Automobile Tnallrance
Coverage: Automobile Liability.
Limit: $2,000,000
Accident Benefits per Ontario Statutes.
Coverage: Collision
Deductible: $250
Coverage: Comprehensive
Deductible: $100
Deductible: The deductible will be paid by OCW A.
ComDrehensive General Liability Insurance
Coverage: Third party liability including legal fees, for property damage and/or
bodily injury as caused by negligence arising out of all operations of the
insured.
Limit: $20,000,000 per occurrence.
Deductible: $2,500
Where OCW A is negligent the deductible will be paid by OCW A. Where
the Client is negligent, the deductible will be paid by the Client. In cases
where both OCW A and the Client are negligent the deductible will be
divided equally.
PoUution Liabilitv Insurance
Coverage: Pollution legal liability covering third party property damage and
bodily injury and clean up costs for pollution conditions emanating
from the Facilities, with a coverage limit of $10,000,000.00 per
claim or occurrence and aggregate. Coverage provides for on-site
clean up of the Facilities.
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$10,000,000 per loss on a Claims Made basis with automatic, extended
reporting periods. $10,000,000 aggregate.
Deductible: $50,000.
Limit:
Where OCW A is negligent the deductible will be paid by OCW A. Where
the Client is negligent, the deductible will be paid by the Client. In cases
where both OCW A and the Client are negligent the deductible will be
divided equally.
Where neither the Client nor OCW A is negligent the deductible will be
paid as follows:
Where the Client's property is repaired or replaced the Client will pay the
deductible. Where OCW A's property is repaired or replaced, OCW A will
pay the deductible. In cases where the Client's and OCW A's and/or a third
party's property is repaired or replaced, the deductible will be paid by both
the Client and OCW A pro rata in accordance with the total loss.
.
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SERVICES AGREEMENT
TillS AGREEMENT effective as of the first day of January, 2001,
BETWEEN:
ONTARIO CLEAN WATERAGENCYIAGENCE ONTAJUENNE
DES EAux. a corporation established under the CaoitalInvestment Plan
Act. 1993. chapter 23, Statutes of Ontario
(referred in this Agreement as "OCWA")
AND
THE CORPORATION OF THE MUNICIPALITY OF
KINCARDINE.
(referred in this Agreement as the "Client")
RECITALS
(a) OCWA is in the business of providing operation and maintenance services for water and
wastewater facilities.
(b)
The Client is the owner of the facility more particularly described in Schedule A, (the
"Facility") pursuant to a transfer under the Municinal Water and SeW1U!e Tran~fer Act.
1997.
(c)
The Client wishes to retain the services of OCW A to operate and maintain the Facility in
accordance with the provisions of this agreement (the "Agreement").
(d)
The Client and OCWA (collectively, the "Parties") are entering this Agreement to clarify
and set out their respective rights and obligations with respect to the operation,
maintenance, invoicing and payment arrangements for the Facility.
+h ,\ ~o.o
The council of the Client on the ~dayof U-'-e"'b<'~ .199_passed by-law No.
;Jððð -I '" :5 authorizing the Client to enter into this Agreement.
(e)
NOW THEREFORE in consideration of the mutual covenants contained in this
Agreement and other good and valuable consideration the receipt and sufficiency of which is
hereby irrevocably acknowledged, the Client and OCW A agree as follows:
ARTICLE 1 -INDEX TO DEFINITIONS
Section 1.1 - Definitions
In this Agreement, definitions are set out in Schedule B, or with applicable provisions, as
indicated.
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ARTICLE 2 - RESPONSmlLITIES OF OCWA
Section 2.1 - Retention of OCW A
The Client retains OCW A to provide management, operation, administration and
maintenance services (as further described in Schedule "C" to this Agreement) in respect of the
Facility (the "Services").
Section 2.2 - Performance of Services
(a) OCW A shall operate the Facility in compliance with all Applicable Laws, regulations and
Authorizations except as described in Paragraphs 2.2(b) and (c) below and in any of the
following circumstances:
(i) the Client not making the Capital Expenditures reasonably recommended by
OCW A in the Estimate as described under Section 4.2 below;
(ii) mechanical failure of any equipment at the Facility unless the mechanical failure
is due to negligent maintenance by OCW A;
(iii) the wastewater transmitted to the Facility for treatment does not meet the
requirements of the Client's sewer use by-law or any Applicable Law;
(iv) the quantity of wastewater transmitted to the Facility exceeds the Facility's
design capacity.
(b) OCW A may temporarily cease to provide or reduce, the level of provision of Services
hereunder in the event of an emergency, a breakdown or any Uncontrollable Circumstance;
provided, however, that OCW A shall, when practicable, endeavour to give the Client reasonable
advance notice of each such occurrence.
(c) Notwithstanding any other provision of this Agreement, delay in the performance of, or a
failure to perform any term of this Agreement by OCW A, shall not constitute default under this
Agreement or give rise to any claim for damages suffered by the Client if and to the extent
caused by occurrences or circumstances beyond the reasonable control of OCW A, including but
not limited to the wastewater transmitted to the Facility for treatment not meetimg the
reqnirements of the Client's sewer use by-law or any Applicable Law; the wastewater transmitted
to the Facility for treatment containing contaminants or other substances which cannot be treated
or removed by the Facility's processes; the quantity of wastewater transmitted to the Facility
exceeding the Facility's design capacity, decrees of govermnent, acts of God (including but not
limited to hurricanes, tornadoes, floods and other weather disturbances), sabotage, strikes,
lockouts and other industrial disturbances, insurrections, war, civil disturbances, riots,
explosions, fire and acts of third parties (any such occurrence or circumstance is referred to as an
"Uncontrollable Circumstance").
(d) OCW A, in its discretion, may take remedial measures that it determines are reasonably
necessary to attempt to maintain compliance with Applicable Laws. Within the context of
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Section 2, such measures may be beyond the Services and as such, would be part of the Actual
Charges incurred pursuant to Section 4.4. OCW A shall use its best efforts to contact the Client
and obtain the Client's approval prior to undertaking such remedial measures.
·
(e) Notwithstanding Paragraph 2.2(d) above, the Client recognizes that such remedial
measures taken by OCW A may be as a result of an emergency situation or an Uncontrollable
Circumstance and that in such situations OCW A's primary concern will be making all reasonable
efforts to maintain compliance with Applicable Laws.
Section 2.3 - Excluded Services
Any services not set out in the Services are excluded nom this Agreement (the
"Excluded Services") and, without limiting the generality of the foregoing, those services set out
in Schedule D are examples of Excluded Services. If the Client subsequently requires OCW A to
provide the Excluded Services, the Excluded Services may be provided at additional cost to the
Client.
Section 2.4 - Standard of Care
OCW A shall deliver the Services as would a reasonable operator with like skills in like
circumstances.
· Section 2.5 - OCW A as Indenendent Contractor
In performing the Services, OCW A shall be acting as an independent contractor and only
to the extent and for the specific purposes expressly set forth herein. Neither OCW A nor its
employees, agents or subcontractors shall be subject to the direction and control of the Client,
except as expressly provided in this Agreement.
Section 2.6 - Anthorized Representatives
Each of OCW A and the Client shall be entitled to designate in writing to the other one or
more individuals who shall be authorized to represent it in connection with the day-to-day
administration of the provisions of this Agreement (the "Authorized Representatives"). Each of
the parties shall be entitled to rely on the acts and approvals given by the other party's Authorized
Representative until such time as it receives a written notification of change in the other party's
Authorized Representative.
Section 2.7 - Renortinl!:
·
OCW A shall provide the following reports to the Client:
(a)
a facility performance report, within thirty Business Days of the completion of each
calendar quarter or such other period as the Client and OCW A may agree upon.
(b)
a summarized financial report on a quarterly basis indicating expenditures to date and
funds remaining; and
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(c) an annual report sununarizing relevant activities and maintenance operations, actual
expenditures, laboratory analyses, treatment results, water quality, sludge utilization and
safety activities and any special studies.
· Section 2.8 - Indemnification of the Client
OCW A shall exonerate, indemnifY and hold harmless the Client, its directors,officers,
employees and agents from and against any and all Claims which may be suffered or incurred by,
accrue against or be charged to or recoverable from the Client that are caused by OCW A's
negligence or wilful misconduct when performing the Services. The Client shall be deemed to
hold the provisions of this Section 2.8 that are for the benefit of the Client's officers, employees
and agents in trust for such officers, employees and agents as third party beneficiaries under this
Agreement.
Section 2.9 - Insuranec
(a) OCW A shall arrange for insurance coverage of the Facility as described in Schedule E to
this Agreement (the "Insurance") and, with the exception of automobile insurance, the Client
shall be an additional insured under such coverage. If there is a significant change in the
insurance coverage described in Schedule E, the Client will be notified of such change.
·
(b) The Client may, at its cost, maintain additional insurance in respect of the Facility if it
wishes and OCW A shall be an additional insured under such insurance.
( c) The Client shall be responsible for securing its own insurance for any operations with
which it is involved or which are Excluded Services that are not the subject of this Agreement.
The Client acknowledges that it will have no recourse under OCW A's policies of insurance for
any such operations.
(d) In the event of a claim under the Insurance, the payment of deductibles is as specified in
Schedule E.
Section 2.10 - Re.P..........tationll and Warranti.... ofOCWA
OCW A represents and warrants to the Client that the following are true and correct:
(a) that it has full power and authority and has taken all necessary steps to enter into and
perform its obligations under this Agreement; and
(b) OCW A's staff are trained and capable of carrying out the terms of this Agreement.
·
ARTICLE 3 - RESPONSmILITIES OF THE CLIENT
Section 3.1 - Renresentations and Warranties ofthe Cli"nt
The Client represents and warrants to OCW A that:
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(a) The Client has the full power and authority to enter into and perform its obligations under
this Agreement, including but not limited to, the power and the authority to pay the
Estimate, the Actual Charges, the Management Fee and any other costs that OCW A may
incur in performing the Services, when due and payable under this Agreement.
(b) The Client has passed all necessary by-laws and obtained all necessary Authorizations to
enable it to enter into and perform its obligations under this Agreement and to operate the
Facility, including without limitation, any Authorizations required from the Ontario
Municipal Board, and each of the Authorizations is in good standing.
(c) The Client has provided OCW A with a true copy of each of the Authorizations referred to
in Paragraph 3.1 (b) above, prior to the date of execution of this Agreement, including a
certified copy of each municipal by-law and other approval required to authorize the
Client to enter into and perform its obligations under this Agreement.
(d) As owner of the Facility the Client is fully aware of its responsibilities and obligations
and, as part of its due diligence in operating the Facilities, has selected OCW A as operator
to provide the Services.
Section 3.2 - Covenants of the Client
The Client hereby covenants for the benefit of OCW A:
(a)
The Client agrees to promptly provide OCW A with any information relating to the
Facility which could have a bearing on the provision of Services by OCW A.
(b) The Client shall repair, maintain and keep in a good working state, in accordance with
good engineering practices and the standards reasonably applicable to an owner of a like
facility, all wastewater that belong to or are under the control of the Client and that collect
and transmit wastewater to the Facility.
( c) The Client shall take reasonable steps to ensure that wastewater transmitted to the Facility
complies with the Client's sewer use by-law presently in force.
Section 3.3 - Indemnification of OCW A
(a) Subject to Paragraph 3.3(c) below, the Client shall exonerate, indenmify and hold
harmless OCW A, its directors, officers, employees and agents and Her Majesty the Queen in
Right of Ontario, as represented by the Minister of the Environment and all officers, employees
and agents of the Ministry of the Environment (collectively referred to as the "Indemnified
Parties") from and against any and all Claims which may be suffered or incurred by, accrue
against, or be charged to or recoverable from anyone or more of the Indenmified Parties that, in
any way, either arise from or are connected with the operation of this Agreement.
(b) OCWA shall be deemed to hold the provision of this Section 3.3 that are for the benefit
of OCW A's directors, officers, employees and agents and the other Indemnified Parties as
defined above, in trust for all such Indenmified Parties as third party beneficiaries under this
Agreement.
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(c) Notwithstanding the other provisions of this Section 3.3, the Client shal1 not be liable in
respect of any Claim:
(i) to the extent that such Claim is covered by a policy of insurance put in place by
OCW A and/or the Ministry of the Environment, the premiums of which
were paid for by the Client; or
(ii) where the Claim arose solely as the result of OCW A's negligence or wilful
misconduct in providing the Services.
ARTICLE 4 - TERM. PAYMENT FOR SERVICES AND OTHER CHARGES
Section 4.1 - Initial Term of A2reement
This Agreement shal1 start on January 1,2001, and shall continue in effect for an initial
term of three years (the "Initial Term") and then shall be renewed for successive three year terms
unless terminated under Section 6.2 of this Agreement.
Section 4.2 - Estimate
No later than September 30th of each year of the Initial Term, OCW A shall prepare and
submit to the Client, for its approval, an estimate of the charges associated with the provision of
the Services for the following calendar year, including a list of the Capital Expenditures required
for the operation of the Facility for the following year. The Client will inform OCW A no later
than December 1st whether the estimate is approved (the approved estimate is referred to as the
"Estimate"). The Estimate, shall be OCW A's authorization to incur the expenditures in the
Estimate. The Estimate for the first year of the Initial Term is $19359.00.
Section 4.3 - Pavment of the Estimate
The Client shal1 pay OCW A the Estimate for the Initial Term, in twelve monthly
payments, in advance on the first day of each month. Each monthly payment shall be $1,613.25.
The first payment shall be due and payable on January 1,2001. Payment shal1 be made by the
Client by pre-authorized debit 1Ì'Om an account designated by the Client.
Section 4.4 - Reconciliation of the Estimate and Actual Chal'l!:es
At the end of each calendar year, OCW A will determine the actual charges for providing
the Services to the Client for that year (the "Actual Charges"). If the Estimate paid by the Client
for the year exceeds the Actual Charges, OCW A will pay the Client the difference within thirty
days of OCW A making the determination. If the Actual Charges exceed the Estimate paid by the
Client, the Client shall pay OCW A the difference within thirty days of OCW A notifying the
Client in writing of the determination.
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Section 4.5 - Other Chal'l!:es
The Estimate, as reconciled with the Actual Charges, includes all charges associated with
providing the Services, except for the following:
·
(a) OCW A's Management Fee (as described in Section 4.6 below); and
(b) Unexpected Expenses (as described in Section 4.7 below).
Section 4.6 - Manal!:ement Fee
(a) In addition to payment of the Estimate, as reconciled with the Actual Charges, the Client
shall also pay OCW A a fixed annual management fee of $3,100.00 (the "Management
Fee") for every year of the Initial Term. The Management Fee shall be paid by the Client
in twelve equal monthly instalments at the same time and in the same manner as the
Estimate.
(b)
·
The Management Fee in any renewal term shall be as agreed by the Client and OCW A. If
the Client and OCW A cannot reach an agreement on the Management Fee for any
renewal term within six months of the beginning of the last year of the current term
(whether the Initial Term or a renewal term) (the "Current Term"), this Agreement will be
terminated six months from the last day of the Current Term. During this six month
period, the Client will pay the Management Fee paid for the last year of the Current Term,
as indicated above, pro-rated over the six month period.
(c) The Management Fee includes all additional charges prescribed by Regulation 157/93
under the Ontario Water Resources Act.
Section 4.7 - Unexoeeted E:qIenses
(a) "Unexpected Expenses" means unanticipated expenditures, including any Capital
Expenditures that OCW A reasonably incurs in order to address equipment failure, acts of
third parties, or other circumstances beyond OCW A's reasonable control (such as
unregulated septic dumping, illegal industrial waste discharges and overflows), an
emergency situation or any situation resulting from an Uncontrollable Circumstance.
(b)
·
In the event that OCW A is required to incur Unexpected Expenses, the prior approval of
the Client with respect to those Unexpected Expenses will be required only if time
permits. Within ten days of incurring the Unexpected Expenses OCW A will provide the
Client with a report detailing the reasons the Unexpected Expenses were incurred and the
Client shall pay OCW A for the Unexpected Expenses immediately upon receipt of an
invoice from OCW A.
Section 4.8 - Interest on Late Pavmenu
If the Client's monthly payment of the Annual Price is not available in its designated
bank account on the agreed to date of payment, or if a certified cheque payable to the Ontario
Clean Water Agency, has not been received, OCW A will notify the Client that the funds were not
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available. On the next Business Day, OCW A will again attempt to withdraw the monthly
payment. If funds are not available when the second attempt to withdraw funds is made, OCW A
will notify the Client that the payment is late, and in addition to paying the monthly payment
owing to OCW A, the Client shall pay OCW A interest at that rate determined by the Minister of
Finance, from time to time, as payable on overdue accounts, in accordance with the Financial
Administration Act plus any banking and administrative charges.
Section 4.9 . Partial Pavment of Disnuted Invoices
If the Client disputes any portion of an invoice, the Client shall nonetheless pay to
OCW A the undisputed portion of the invoice by the due date. If any additional amount is finally
determined to be payable to OCW A, the Client shall pay OCW A the additional amount, plus
interest as provided above in Section 4.8 above, within ten days from the date of final
determination.
ARTTc.T.E S - DISPUTE RESOLUTION
Section 5.1 - Medi..tioD
(a) Ifa dispute arises between the Client and OCWA which cannot be resolved within a
reasonable time, the issue shal1 be referred to a mediator.
(b)
The fees and expenses of the mediator will be divided equally between the Parties.
(c) Involvement in mediation is on a without prejudice basis and does not preclude and is not
a bar to either Party pursuing whatever legal remedies may be available, including
litigation.
ARTICLE 6 - EXISTING AGREEMENTS AND TERMINATION
Section 6.1 - Existin~ A_ments
(a) Subject to Paragraph 6.1(b) of this Agreement, any existing agreements between the
Client and OCWA or the Client and one ofOCWA's predecessors which deals with the
subject matter described in this Agreement (an "Existing Agreement") shall be
terminated.
(b)
Notwithstanding any other provisions in this Agreement and in particular Paragraphs
6. I (a) above, all financial obligations of the Client to OCWA or any ofOCWA's
predecessors under any Existing Agreement, including but not limited to the obligation of
the Client to pay any outstanding debt owed in respect of the Facility, shal1 remain in
effect until such time, if applicable, that new financing arrangements have been entered
into between the Client and OCW A.
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Section 6.2 - Termination of AlU"eement
(a)
At least twelve calendar months before the expiry of the Initial Term, the Client shall
notify OCW A in writing whether it wishes to renew or terminate this Agreement at the
end of the Initial Term or any Renewal Term. Ifno notice is given as required by this
section or the parties do not otherwise agree in writing then the Agreement shall renew
for a further five year period ("Renewal Term").
(b) During the Initial Term or any Renewal Term, this Agreement may be terminated by
either the Client or OCW A ("Termination for Cause") if:
(i) there has been a material breach of the Agreement; and
(ü) the party complaining of the breach has given written notice of the breach to the
other party; and
(iii) the other party does not correct the breach within thirty days of receiving the
notice.
(c)
Where there is a material breach and: (i) such material breach has not been corrected
within the time set out in Paragraph 6.2(b) above; (ii) the material breach has not been
referred to mediation pursuant to Section 5.1 of this Agreement; or (iii) the Parties have
not otherwise agreed in writing, then the complaining party may terminate this Agreement
by giving at least six months notice in writing to the other Party.
(d) If either Party disputes the existence of a breach or that the breach is material, the dispute
may be referred to mediation under Section 5.1 of this Agreement.
( e) After the Initial Term of this Agreement, either the Client or OCW A may terminate this
Agreement as follows:
(i) for any reason, upon twelve months prior written notice; or
(ii) if there has been a material breach of the Agreement, in accordance with the
procedure described in Paragraphs 6.2(b) and (c) above and Section 6.3 below.
Section 6.3 - Earlv Termination
If there has been Termination for Cause, then the terminating party shall be paid its actual
costs up to the date of termination. Such costs may include, on the part of the Client, the costs of
retendering or hiring a replacement and temporary operator until a permanent operator can be
retained, and in the case of OCW A, the costs of demobilization.
Section 6.4 - Fin"l Settlement
IfOCWA ceases to operate and maintain the Facility, there shall be a final settlement of
all accounts with respect to the Actual Charges, Management Fee and any other charges and
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expenses incurred by OCW A and amounts owing by or to the Client under this Agreement and
any Existing Agreement, no later than ninety days after OCW A ceases to provide the Services.
ARTICLE 7 - INNOVATIONS
Section 7.1- Innovations
Either Party may bring forward innovative ideas for the operation of the Facility and both
parties agree to reasonably consider such innovative ideas.
ARTlCT.E 8 - GENERAL
Section 8.1 - Year 2000 Com»li.nce
(a)
The Parties represent and warrant that all proprietary and non-proprietary computer
hardware, software and firmware (including without limitation all telecommunications,
imbedded systems and premise technology), individually and in combination that are used
by each and that may impact the delivery or the quality of each party's respective
obligations under this Agreement or the ability each to provide accurate invoicing and
payment in respect of the Services (collectively the Parties' Systems), shall be "Year
2000 Compliant", meaning that the Parties' Systems:
(i) are designed to be capable of operating prior to, during and after the calendar year
2000 AD, without error or reduction in performance relating to date data,
specifically including any error relating to date data which represents or references
different centuries or more than one century;
(ii) are able to accurately manage, manipulate and process date and date-related data
(including but not limited to calculating, comparing, sequencing and sorting)
from, into and between the calendar years 1999 and 2000 AD. and from, into and
between the twentieth and twenty-first centuries (including leap year calculations);
and
(iii) shall not abnormally tenninatp. or provide invalid or incorrect results due to date
or date-related data, specifically including date data which represents or references
different centuries or more than one century.
(b)
At either Party's request, the other shall, at no charge to the requester, demonstrate the
compliance techniques and test procedures to be followed by such party to confirm that
the its systems are Year 2000 Compliant in accordance with paragraph (a).
(c) Either Party shall cause all subcontractors to comply with paragraph (a) with respect to
any component of its Systems to be provided by such subcontractors.
Tiverton Sew8 ¡e Agreement· 00/12/08
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(d) Each Party represents and warrants that the meeting of its obligations under this
Agreement shall not be interrupted due to the failure of those systems which support the
operation of its business to be Year 2000 Compliant.
· Section 8.2 - Aveement to Govern
If there is any inconsistency between this Agreement and any Schedule to this Agreement,
this Agreement shall govern.
Section 8.3 - Ownenhiu of Technolol!V
The Client acknowledges and agrees that in providing the Services, OCW A may utilize
certain technology developed by or for OCW A, whether existing now or in the future, including
but not limited to technology such as WMMS, Outpost 5 and PDC (the "Technology"). The
Client further agrees that the use of the Technology at the Facility does not in any way give the
Client any ownership rights in or Intellectual Property Rights to, the Technology.
Section 8.4 - Headinp
The division of this Agreement into Articles, Sections and Paragraphs and the insertion of
headings are for convenience of reference only and will not affect the construction or interpre-
tation of this Agreement.
·
Section 8.5 - Entire A2reement
This Agreement constitutes the entire agreement between the Client and OCW A with
respect to the subject matter hereof and cancels and supersedes any prior understandings and
agreements between the Client and OCW A with respect thereto except for the provisions of any
Existing Agreements that remain in effect in accordance with Section 6.1 of this Agreement.
There are no representations, warranties, terms, conditions, undertakings or collateral agree-
ments, express, implied or statutory, between the parties other than as expressly set forth in this
Agreement and in the provisions of the Existing Agreements which remain in effect in
accordance with Paragraphs 6. I (b) and (c) of this Agreement.
Section 8.6 - Proposal not Part of A2reement
OCW A's proposal to the Client to operate the Facility shall not form part of this
Agreement.
·
Section 8.7 - Amendments and Waiven
No amendment to this Agreement will be valid or binding unless it is in writing and duly
executed by both of the parties hereto. No waiver of any breach of any provision of this
Agreement will be effective or binding unless it is in writing and signed by the party purporting
to give such waiver and, unless otherwise provided, will be limited to the specific breach waived.
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Section 8.8 . Successors and Assiøn.
This Agreement shall operate to the benefit of and be binding upon, the parties hereto and
their successors and assigns. This Agreement may be assigned in the discretion of either party.
·
Section 8.9 - Survival
All representations, warranties and indemnities given by each of the parties, shall survive
indefinitely the termination of this Agreement.
Section 8.10 - Severabilitv
If any covenant, obligation or provision hereof or the application thereof to any person or
circumstance shall, to any extent be invalid or unenforceable, the remaining provisions or the
application of each provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shal1 continue to be valid and enforceable.
Section 8.11 - Noûces
Any notice, or other communication required or permitted to be given hereunder by either
party to this Agreement shall be in writing and shall be delivered in person, transmitted by fax or
sent by registered mail, addressed as follows:
·
(i)
if to the Client:
Municipality of Kincardine
707 Queen Street
Kincardine, Ontario
N2Z IZO
Telephone:
Fax:
Attention:
(519) 396-3468
(519) 396-8288
Clerk
(ii) if to OCW A:
Ontario Clean Water Agency
3508 Wonderland Road South
London, Ontario
N6L IA 7
Telephone:
Fax:
Attention:
(519) 652-7027
(519) 652-7020
Vice President,
Western/Central Area
(b)
If delivered in person or transmitted by fax, any such notice or other communication shall
be deemed to have been given and received on the day on which it was delivered or
transmitted (or, if such day is not a Business Day, on the next following Business Day).
·
( c) If mailed, any such notice or other communication shall be deemed to have been given
and received on the third Business Day following the date of mailing; provide, however,
that if at the time of mailing or within three Business Days afterwards a labour dispute or
other event occurs, which might reasonably be expected to disrupt the delivery of
documents by mail, any notice or other communication hereunder shal1 be delivered or
transmitted by fax as provided in this Section 8.11.
Tiverton Sewage Agreement - 00/12108
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(d) A party to this Agreement may change its address for the purpose of this Section by
giving the other party notice of such change of address in the manner provided in this
Section.
· Section 8.12 - Counternarts
This Agreement may be executed in counterparts, each of which shall constitute an
original and all of which taken together shal1 constitute one and the same instrument.
IN WITNESS WHEREOF the parties have duly executed this Agreement.
ONTARIO CLEAN WATER AGENCY
BY:~ !IJItpj~
(Authorized Signatory)
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Date of Signing
THE CORPORATION OF
THE MUNICIPALITY OF KINCARDINE,
JJe<:.. qt,. .)000
Date of Signing
By:
~ -?~ ..L~ ...
(Authorized Signing Officer)
.De:. ~. ,lOOD
Date of Signing
By:
·
Tiverton SeW8 ¡e Agreement - 00/12/08
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SCHEDULE A
THE FACILITY
TIVERTON SEWAGE FACILITIES
Part 1. Description of the Facility
For the purposes of this agreement, the Facility is comprised of the following:
A sanitary wastewater collection system and two pumping stations with associated forcemains.
Part 2. Legal Description of the Lands on which the Facility is Situated
The location of the Treatment Facility is as follows:
Pumping station #1 - Block A, Plan 44, west of Maple Street, Village ofTiverton
Pumping station #2 - Lot 36, R. P. #196, west of King Street, Village ofTiverton
Tiverton Sewage Agreement - 00/12108
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DEFINITIONS
· In this Agreement, the following terms are defined below or in the section in which they first
appear:
"Actual Charges" is defined in Section 4.4 of this Agreement.
"Agreement" means this agreement together with Schedules A, B , C, D and E attached hereto
and all amendments made hereto by written agreement between OCW A and the Client.
"Applicable Laws" is to be broadly interpreted and means, with respect to any person, property,
transaction, event or other matter dealt with in this Agreement, any and all statutes, by-laws,
regulations, enactments, ordinances, rules, permits, consents, approvals, certificates of approval,
licences, judgments, orders, judicial decisions, common-law rules, decrees, injunctions,
agreements, authorizations, regulations, policies, guidelines, directives, objectives, whether
federal, provincial or municipal including, but not limited to all laws relating to occupational
health and safety matters, fire prevention and protection, health protection and promotion, land
use planning, environment, Building Code, or workers' compensation matters.
·
"Authorizations" means each of the sewer use and water by-laws, licences, certificates of
approval, permits, consents and other authorizations required under any law, regulation, by-law
or government policy in order to operate the Facility from time to time.
"Authorized Representative" is defined in Section 2.6 of this Agreement.
"Business Day" means a day other than a Saturday, Sunday or statutory holiday in Ontario.
"Capital Expenditures" means the charges for all capital items in relation to the Facility,
including new or replacement equipment, any overhaul or rebuild of equipment, any non-routine
repair; maintenance, (and excluding routine maintenance); any alterations and any associated
installations, commissioning, including labour and preselection charges, together with OCW A's
service fee.
"Claim" means any claim, fine, penalty, liability, damages, loss and judgement, (including but
not limited to, costs and expenses incidental thereto) of any kind or nature whatsoever.
"Current Term" is defined in Paragraph 4.6(b) of this Agreement.
· "Estimate" is defined in Section 4.2 of this Agreement.
"Excluded Services" is defined in Section 2.3 of this Agreement.
"Existing Agreements" is defined in Paragraph 6.l(a) of this Agreement.
"Facility" means the wastewater collection facility as defined in the Background to this
Agreement and further described in Schedule A to this Agreement.
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"Indemnified Parties" is defined in Paragraph 3.3(a) of this Agreement.
"Initial Term" is defined in Section 4.1 of this Agreement.
· "Insurance" is defined in Paragraph 2.9(a) and further described in Schedule E.
"InteUectual Property Rights" means any copyright, trademark, patent, registered design,
design right, topography right, service mark, application to register any of the aforementioned
rights, trade secret, rights in unpatented know-how, right of confidence and any other intellectual
or industrial property rights of any nature whatsoever in any part of the world.
"Management Fee" is defined in Paragraph 4.6(a) of this Agreement.
"Outpost 5" means a remote monitoring and control system designed and constructed by OCW A
and its consultants for the purpose of monitoring and controlling processes at water and
wastewater treatment facilities and their related parts.
"Parties" is defined in the Recitals.
"Parties' Systems" is defined in Paragraph 8.1(a) of this Agreement.
·
"POC" or "Process Data CoUection" means technology that allows process data to be entered
into a format that can be viewed, manipulated and retrieved in the form of customized reports.
"Renewal Term" is defined in Paragraph 6.2(a) of this Agreement.
"Services" is defined in Section 2.1 and further described in Schedule B to this Agreement.
"Technology" is defined in Section 8.2 of this Agreement.
"Termination for Cause" is defined in Paragraph 6.2(b) of this Agreement.
"Uncontrollable Ciraunstance" is defined in Paragraph 2.2(c) of this Agreement.
"Unexpected Expenses" is defined in Section 4.7 of this Agreement.
"WMMS" or "Work Management Maintenance System" means a computer program used to
determine a program of preventive maintenance activities for equipment in a facility based on a
risk analysis that considers factors such as equipment life expectancy, present value and
replacement cost.
·
"Year 2000 Compliant" is defined in Section 8.1 of this Agreement.
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SCHEDULE C
THE SERVICES
Subject to the provisions of this Agreement, the Services are those services set out in this
Schedule.
1. Ooentin2Duti~
OCW A will perform regularly scheduled inspections and carry out associated operational duties
at the Facility, including all related eqnipment, buildings and property to ensure that the Facility
is operating effectively. Specifically, OCW A will:
Wastewater Collection
yearly, remove maintenancehole covers and inspect maintenance holes for flow through,
debris accumulation, structural stability of walls and rungs, infiltration and proper
benching;
flush maintenancehole and sewers once per year with hydrant water and remove sand and
debris;
routinely monitor wastewater collection system for infiltration, illegal connections and
illegal discharge of contaminants to system; and
sample raw wastewater routinely.
2.
Dav-to-~ M.intenance
OCW A will provide routine maintenance of the Facility as would a reasonable operator.
Specifically, OCW A will:
carry out a routine lubrication program including greasing and oiling as specified in the
lubrication schedule;
perform routine maintenance duties to equipment by following the preventive measures
procedures; by checking machinery and electrical equipment when required and
overhauling of equipment;
maintain an inventory on all equipment and tools; and
ensure the security of the project by locking doors and gates.
3.
CaDital ....provements
OCW A, acting as a reasonable operator, will record information on the frequency of
equipment breakdown and repair costs to determine replacement needs. Parts of the
Facility requiring upgrading or improvement will be identified and brought to the
attention of the Client in accordance with Sections 4.2 or 4.7 of this Agreement.
4.
Ontimi7..tion and Co...pli.nee of ODention
OCW A will routinely analyze, investigate and, where appropriate, implement measures to
improve the effectiveness and efficiency of the Facility.
Tiverton Sew8 ¡e AJl[eement - 00/12/08
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OCW A, acting reasonably, is responsible for ensuring an efficient operation of the
process and keeping records on a daily basis by:
Wastewater CoUection and Treatment
recording and analyzing wastewater flow, electricity used;
calculating, recording, and analyzing the daily flows and monthly flows, pumping station
running hours;
on a routine basis, completing the daily operating forms for statistics for computer input
and output forms and correcting the results of the output forms to ensure a proper
monitoring of plant flows and process;
collecting samples for bacterial and chemical analysis and ensuring that they are shipped
to the proper labs (analysis to ensure a representative analysis);
ensuring that the daily operations comply with and fulfill the requirements of the
Certificate of Approval and other legal documents; and
inspecting wastewater collection system for sources of infiltration or illegal discharge of
contaminants and working with client to resolve.
s.
ReeuJatory Matters
OCW A will handle day-to-day regulatory requirements and contacts with regulatory
authorities in respect of operating issues concerning the Facility. OCW A will review any
inspection reports prepared by regulatory authorities that are provided to OCW A.
Subject to any approvals of the Municipality required by Section 4.2 of this Agreement,
OCW A will either correct deficiencies identified in such inspection reports or negotiate
changes to the reports with the regulatory authorities.
6.
Staffin,
OCW A will staff the Facility with certified operators and other trained staff as required
by regulation under the Ontario Water Resources Act.
All OCW A staff at the Facility will be trained for the normal process operation and
maintenance of the Facility and will also received training on how to deal with emergency
situations should they arise. Staff will continue to receive training on an ongoing basis.
OCW A staff will be available to provide 24 hour coverage at the Facility in the event of
emergencies.
7.
Emel'Jency Situations and Safetv
OCW A will ensure that the Facility has a contingency plan in place to deal with
non-routine operational situations and emergency situations such as spills, by-passes,
overflows, hydro interruptions and equipment failure.
Tiverton Sewa¡¡e Agreement - 00/12/08
SCHEDULE D
EXCLUDED SERVICES
· The following services will not be provided by OCW A and are considered to be
"Excluded Services" for the purposes of this Agreement:
installation of new sewer services;
high pressure sewer flushing;
cost for non-routine sampling and lab analysis;
grass cutting
·
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SCHEDUT.E E
INSURANCE
A sununary of the insurance coverage that OCW A will arrange for in respect of the Facility is
described below:
Prooerty 1 nRanmce
Perils:
"All Risks" including earthquake and flood. Subject to policy
exclusions.
Limits:
- $2,398,500,000 combined limit anyone loss, casualty, or disaster
- $2,398,500,000 annual aggregate of flood claims
- $2,398,500,000 annual aggregate of earthquake claims
- Replacement Value (Subject to Annual Reports)
- $25,000,000 for extra expenses above and beyond regular costs
associated with running the operation
- Extra expenses associated with shutting down the business for up to
six weeks on interruption by Civil Authority
Deductibles: All Perils - $2,500 except earthquake and flood
Earthquake - the greater of $1 00,000 or 3%;
Flood - $25,000
Where the Client's property is repaired or replaced the Client will pay the
deductible. Where OCW A's property is repaired or replaced, OCW A will
pay the deductible. In cases where both the Client's and OCW A's property
is repaired or replaced, the deductible will be paid by both the Client and
OCW A pro rata in accordance with the total loss.
Property
Insured:
All reported properties including buildings and equipment situated within
1,000 feet of the premises. Includes pumping stations, excludes
underground sewer and water system.
Boiler and Machinery Insurance
Coverage: Insures against loss or damJlge arising from an accident to scheduled
object in use or connected ready for use.
Objects: Boilers, Pressure Vessels (Excess of l5PSI) Piping.
Accident:
Sudden and accidental breakdown of an object which causes it physical
damagf:, requiring its repair or replacement.
Subject to policy exclusions.
Limit:
$10,000,000 per loss.
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Deductibles: $2,500.
·
Where the Client's property is repaired or replaced the Client will pay the
deductible. Where OCW A's property is repaired or replaced, OCW A will
pay the deductible. In cases where both the Client's and OCW A's property
is repaired or replaced, the deductible will be paid by both the Client and
OCW A pro rata in accordance with the total loss.
Automobile Insurance
Coverage: Automobile Liability.
Limit: $2,000,000
Accident Benefits per Ontario Statutes.
Coverage: Collision
Deductible: $250
Coverage: Comprehensive
Deductible: $100
·
Deductible: The deductible will be paid by OCW A.
Comnrehensive General Liability Insurance
Coverage: Third party liability including legal fees, for property damage and/or
bodily injury as caused by negligence arising out of all operations of the
insured.
Limit: $20,000,000 per occurrence.
Deductible: $2,500
Where OCW A is negligent the deductible will be paid by OCW A. Where
the Client is negligent, the deductible will be paid by the Client. In cases
where both OCW A and the Client are negligent the deductible will be
divided equally.
·
PoUutioD Liabilitv 1 D!llII'IUIce
Coverage: Pollution legal liability covering third party property damage and
bodily injury and clean up costs for pollution conditions emanating
fÌ'om the Facilities, with a coverage limit of $10,000,000.00 per
claim or occurrence and aggregate. Coverage provides for on-site
clean up of the Facilities.
Tiverton Se~ Agreement - 00/12/08
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$10,000,000 per loss on a Claims Made basis with automatic, extended
reporting periods. $10,000,000 aggregate.
Deductible: $50,000.
·
Where OCW A is negligent the deductible will be paid by OCW A. Where
the Client is negligent, the deductible will be paid by the Client. In cases
where both OCW A and the Client are negligent the deductible will be
divided equally.
Where neither the Client nor OCW A is negligent the deductible will be
paid as follows:
Where the Client's property is repaired or replaced the Client will pay the
deductible. Where OCW A's property is repaired or replaced, OCW A will
pay the deductible. In cases where the Client's and OCW A's and/or a third
party's property is repaired or replaced, the deductible will be paid by both
the Client and OCW A pro rata in accordance with the total loss.
·
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Tiverton Sew8 ¡e A¡:reement - 00/12/08
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SERVICES AGREEMENT
THIS AGREEMENT effective as of the first day of January, 2001
. BETWEEN:
ONTARIO CLEAN WATER AGENCYIAGENCE ONTARTENNE
DES EAux. a corporation established under the CaoitalInvestment Plan
Act. 1993. chapter 23, Statutes of Ontario
(referred in this Agreement as "OCWA")
AND
THE CORPORATION OF THE MUNICIPALITY OF
KINCARDINE.
(referred in this Agreement as the "Client")
RECITALS
(a) OCW A is in the business of providing operation and maintenance services for water and
wastewater facilities.
.
(b)
The Client is the owner of the facility more particularly described in Schedule A, (the
"Facility").
(c) The Client wishes to retain the services ofOCWA to operate and maintain the Facility in
accordance with the provisions of this agreement (the "Agreement").
(d) The Client and OCW A (collectively, the "Parties") are entering this Agreement to clarify
and set out their respective rights and obligations with respect to the operation,
maintenance, invoicing and payment arrangements for the Facility.
ólØ()O
(e) The council of the Client on the ..)lI+~day of .ðé(",..t..,,· , 199_passed by-law No.
;lOOð -/ ~.3 authorizing the Client to enter into this Agreement.
NOW THEREFORE in consideration of the mutual covenants contained in this
Agreement and other good and valuable consideration the receipt and sufficiency of which is
hereby irrevocably acknowledged, the Client and OCW A agree as follows:
.
ARTICLE 1 -INDEX TO DEFINITIONS
Section 1.1 - Definitions
In this Agreement, definitions are set out in Schedule B, or with applicable provisions, as
indicated.
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ARTICLE 2 - RESPONSmILITIES OF OCW A
Section 2.1 - Retention of OCW A
·
The Client retains OCW A to provide management, operation, administration and
maintenance services (as further described in Schedule "C" to this Agreement) in respect of the
Facility (the "Services").
Section 2.2 - Performance of Services
(a) OCW A shall operate the Facility in compliance with all Applicable Laws, regulations and
Authorizations except as described in Paragraphs 2.2(b) and (c) below and in any of the
following circumstances:
(i) the Client not making the Capital Expenditures reasonably recommended by
OCW A in the Estimate as described under Section 4.2 beloW;
(ii) mechanical failure of any eqnipment at the Facility unless the mechanical failure
is due to negligent maintenance by OCW A;
·
(iii) the water transmitted to the Facility for treatment contains contaminants
or other substances which cannot be treated or removed by the Facility's
processes;
(b) OCW A may temporarily cease to provide or reduce, the level of provision of Services
hereunder in the event of an emergency, a breakdown or any Uncontrollable Circumstance;
provided, however, that OCW A shall, when practicable, endeavour to give the Client reasonable
advance notice of each such occurrence.
(c) Notwithstanding any other provision of this Agreement, delay in the performance of, or a
failure to perform any term of this Agreement by OCW A, shall not constitute default under this
Agreement or give rise to any claim for dam'lges suffered by the Client if and to the extent
caused by occurrences or circumstances beyond the reasonable control of OCW A, including but
not limited to circumstances where water transmitted to the Facility for treatment contains
contaminants or other substances which cannot be treated or removed by the Facility's
processing, decrees of government, acts of God (including but not limited to hurricanes,
tornadoes, floods and other weather disturbances), sabotage, strikes, lockouts and other industrial
disturbances, insurrections, war, civil disturbances, riots, explosions, fire and acts of third parties
(any such occurrence or circumstance is referred to as an "Uncontrollable Circumstance").
·
(d) OCW A, in its discretion, may take remedial measures that it determines are reasonably
necessary to attempt to maintain compliance with Applicable Laws. Within the context of
Section 2, such measures may be beyond the Services and as such, would be part of the Actual
Charges incurred pursuant to Section 4.4. OCW A shall use its best efforts to contact the Client
and obtain the Client's approval prior to undertaking such remedial measures.
(e) Notwithstanding Paragraph 2.2(d) above, the Client recognizes that such remedial
measures taken by OCW A may be as a result of an emergency situation or an Uncontrollable
Tiverton Water Agreement - 00/12/08
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Circumstance and that in such situations OCWA's primary concern will be making all reasonable
efforts to maintain compliance with Applicable Laws.
Section 2.3 - Excluded Services
Any services not set out in the Services are excluded ûom this Agreement (the
"Excluded Services") and, without limiting the generality of the foregoing, those services set out
in Schedule D are examples of Excluded Services. If the Client subsequently requires OCW A to
provide the Excluded Services, the Excluded Services may be provided at additional cost to the
Client.
Section 2.4 - Standard of Care
OCW A shall deliver the Services as would a reasonable operator with like skills in like
circumstances.
Section 2.5 - OCW A as Indenendent Contractor
In performing the Services, OCW A shall be acting as an independent contractor and only
to the extent and for the specific purposes expressly set forth herein. Neither OCW A nor its
employees, agents or subcontractors shal1 be subject to the direction and control of the Client,
except as expressly provided in this Agreement.
Section 2.6 - Authorized Representatives
Each of OCW A and the Client shall be entitled to designate in writing to the other one or
more individuals who shall be authorized to represent it in connection with the day-to-day
"clministration of the provisions of this Agreement (the "Authorized Representatives"). Each of
the parties shall be entitled to rely on the acts and approvals given by the other party's Authorized
Representative until such time as it receives a written notification of change in the other party's
Authorized Representative.
Section 2.7 - Reoortin,
OCW A shall provide the following reports to the Client:
(a) a facility performance report, within thirty Business Days of the completion of each
calendar quarter or such other period as the Client and OCW A may agree upon.
(b)
a summarized financial report on a quarterly basis indicating expenditures to date and
funds remaining; and
(c) an annual report summarizing relevant activities and maintenance operations, actual
expenditures, laboratory analyses, treatment results, water quality, sludge utilization and
safety activities and any special studies.
Tiverton Water Agreement - 00/12108
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Section 2.8 - Indemnification of the Client
·
OCW A shall exonerate, indemnify and hold harmless the Client, its directors,officers,
employees and agents from and against any and all Claims which may be suffered or incurred by,
accrue against or be charged to or recoverable from the Client that are caused by OCW A's
negligence or wilful misconduct when performing the Services. The Client shall be deemed to
hold the provisions of this Section 2.8 that are for the benefit of the Client's officers, employees
and agents in trust for such officers, employees and agents as third party beneficiaries under this
Agreement.
Section 2.9 - Insurance
(a) OCW A shall arrange for insurance coverage of the Facility as described in Schedule E to
this Agreement (the "Insurance") and, with the exception of automobile insurance, the Client
shall be an additional insured under such coverage. If there is a significant change in the
insurance coverage described in Schedule E, the Client will be notified of such change.
(b) The Client may, at its cost, maintain additional insurance in respect of the Facility if it
wishes and OCW A shall be an additional insured under such insurance.
·
(c) The Client sha11 be responsible for securing its own insurance for any operations with
which it is involved or which are Excluded Services that are not the subject of this Agreement.
The Client acknowledges that it will have no recourse under OCW A's policies of insurance for
any such operations.
(d) In the event of a claim under the Insurance, the payment of deductibles is as specified in
Schedule E.
Section 2.10 - Regresentations and Warranties of OCW A
OCWA represents and warrants to the Client that the following are true and correct:
(a) that it has full power and authority and has taken all necessary steps to enter into and
perform its obligations under this Agreement; and
(b) OCW A's staff are trained and capable of carrying out the terms of this Agreement.
ARTICLE 3 - RESPONSmILITIES OF THE CLIENT
· Section 3.1- Reoresentations and Warranties of the Client
The Client represents and warrants to OCW A that:
(a) The Client has the full power and authority to enter into and perform its obligations under
this Agreement, including but not limited to, the power and the authority to pay the
Estimate, the Actual Charges, the Management Fee and any other costs that OCW A may
incur in performing the Services, when due and payable under this Agreement.
Tiverton Water Agreement - 00/12/08
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(b)
The Client has passed all necessary by-laws and obtained all necessary Authorizations to
enable it to enter into and perform its obligations under this Agreement and to operate the
Facility, including without limitation, any Authorizations required ftom the Ontario
Municipal Board, and each of the Authorizations is in good standing.
·
(c) The Client has provided OCWA with a true copy of each of the Authorizations referred to
in Paragraph 3.1 (b) above, prior to the date of execution of this Agreement, including a
certified copy of each municipal by-law and other approval required to authorize the
Client to enter into and perform its obligations under this Agreement.
(d) As owner of the Facility the Client is fully aware ofits responsibilities and obligations
and, as part of its due diligence in operating the Facilities, has selected OCW A as operator
to provide the Services.
Section 3.2 - Covenants of the Client
The Client hereby covenants for the benefit of OCW A:
(a) The Client agrees to promptly provide OCW A with any information relating to the
Facility which could have a bearing on the provision of Services by OCW A.
·
(b)
The Client shall repair, maintain and keep in a good working state, in accordance with
good engineering practices and the standards reasonably applicable to an owner of a like
facility, all water works that belong to or are under the control of the Client and that
distribute water ftom the Facility.
Section 3.3 - Indemnification of OCW A
(a) Subject to Paragraph 3.3(c) below, the Client shall exonerate, indemnify and hold
harmless OCW A, its directors, officers, employees and agents and Her Majesty the Queen in
Right of Ontario, as represented by the Minister of the Environment and all officers, employees
and agents of the Ministry of the Environment (collectively referred to as the "Indemnified
Parties") ftom and against any and all Claims which may be suffered or incurred by, accrue
against, or be charged to or recoverable ftom anyone or more of the Indemnified Parties that, in
any way, either arise ftom or are connected with the operation of this Agreement.
(b) OCWA shall be deemed to hold the provision of this Section 3.3 that are for the benefit
of OCW A's directors, officers, employees and agents and the other Indemnified Parties as
defined above, in trust for all such Indemnified Parties as third party beneficiaries under this
Agreement.
·
(c) Notwithstanding the other provisions of this Section 3.3, the Client shall not be liable in
respect of any Claim:
(i) to the extent that such Claim is covered by a policy of insurance put in place by
OCW A and/or the Ministry of the Environment, the premiums of which
were paid for by the Client; or
Tiverton Water Agreement - 00/12108
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(ii) where the Claim arose solely as the result of OCW A's negligence or wilful
misconduct in providing the Services.
· ARTJc.T,E 4 - TERM. PAYMENT FOR SERVICES AND OTHER CHARGES
Section 4.1 - Initial Term of A2reement
This Agreement shall start on January 1,2001, and shall continue in effect for an initial
term of three years (the "Initial Term") and then shall be renewed for successive three year terms
unless terminated under Section 6.2 of this Agreement.
Section 4.2 - Estimate
No later than September 30th of each year of the Initial Term, OCWA shall prepare and
submit to the Client, for its approval, an estimate of the charges associated with the provision of
the Services for the following calendar year, including a list of the Capital Expenditures required
for the operation of the Facility for the following year. The Client will inform OCW A no later
than December 1st whether the estimate is approved (the approved estimate is referred to as the
"Estimate"). The Estimate, shall be OCW A's authorization to incur the expenditures in the
Estimate. The Estimate for the first year of the Initial Term is $37,677.00.
· Section 4.3 - Pavment of the Estimate
The Client shal1 pay OCW A the Estimate for the Initial Term, in twelve monthly
payments, in advance on the first day of each month. Each monthly payment shall be $3,139.7S.
The first payment shall be due and payable on January 1, 2001. Payment shall be made by the
Client by pre-authorized debit from an account designated by the Client.
Section 4.4 - Reconciliation of the Estimate and Actual ChlU'l!es
At the end of each calendar year, OCW A will determine the actual charges for providing
the Services to the Client for that year (the "Actual Charges"). If the Estimate paid by the Client
for the year exceeds the Actual Charges, OCW A will pay the Client the difference within thirty
days of OCW A making the determination. If the Actual Charges exceed the Estimate paid by the
Client, the Client shall pay OCW A the difference within thirty days of OCW A notifying the
Client in writing of the determination.
Section 4.5 - Other Chames
·
The Estimate, as reconciled with the Actual Charges, includes all charges associated with
providing the Services, except for the following:
(a) OCW A's Management Fee (as described in Section 4.6 below); and
(b) Unexpected Expenses (as described in Section 4.7 below).
Tiverton Water Agreement - 00/12/08
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Section 4.6 - Manal!ement Fee
(a)
In addition to payment of the Estimate, as reconciled with the Actual Charges, the Client
shall also pay OCW A a fixed annual management fee ofS4,330.00 (the "Management
Fee") for every year of the Initial Term. The Management Fee shall be paid by the Client
in twelve equal monthly instalments at the same time and in the same manner as the
Estimate.
(b) The Management Fee in any renewal term shall be as agreed by the Client and OCW A. If
the Client and OCW A cannot reach an agreement on the Management Fee for any
renewal term within six months of the beginning of the last year of the current term
(whether the Initial Term or a renewal term) (the "Current Term"), this Agreement will be
terminated six months fÌ'Om the last day of the Current Term. During this six month
period, the Client will pay the Management Fee paid for the last year of the Current Term,
as indicated above, pro-rated over the six month period.
( c) The Management Fee includes all additional charges prescribed by Regulation 157/93
under the Ontario Water Resources Act.
Section 4.7 - Une:J;oeeted E:J;oenses
(a)
"Unexpected Expenses" means unanticipated expenditures, including any Capital
Expenditures that OCW A reasonably incurs in order to address equipment failure, acts of
third parties, or other circumstances beyond OCW A's reasonable control (such as
unregulated septic dumping, illegal industrial waste discharges and overflows), an
emergency situation or any situation resulting from an Uncontrollable Circumstance.
(b) In the event that OCW A is required to incur Unexpected Expenses, the prior approval of
the Client with respect to those Unexpected Expenses will be required only if time
permits. Within ten days of incurring the Unexpected Expenses OCW A will provide the
Client with a report detailing the reasons the Unexpected Expenses were incurred and the
Client shall pay OCW A for the Unexpected Expenses immediately upon receipt of an
invoice fÌ'Om OCW A.
Section 4.8 - Interest on Late Pavments
If the Client's monthly payment of the Annual Price is not available in its designated
bank account on the agreed to date of payment, or if a certified cheque payable to the Ontario
Clean Water Agency, has not been received, OCW A will notifY the Client that the funds were not
available. On the next Business Day, OCW A will again attempt to withdraw the monthly
payment. If funds are not available when the second attempt to withdraw funds is made, OCW A
will notifY the Client that the payment is late, and in addition to paying the monthly payment
owing to OCW A, the Client shall pay OCW A interest at that rate determined by the Minister of
Finance, fÌ'Om time to time, as payable on overdue accounts, in accordance with the Financial
Administration Act plus any banking and administrative charges.
Tiverton Water A Ueement - 00/12108
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Section 4.9 - Partial Pavment of Dilnnted Invoices
If the Client disputes any portion of an invoice, the Client shall nonetheless pay to
OCW A the undisputed portion of the invoice by the due date. If any additional amount is finally
determined to be payable to OCW A, the Client shal1 pay OCW A the additional amount, plus
interest as provided above in Section 4.8 above, within ten days 1Ì'Om the date of final
determination.
ARTICLE 5 - DISPUTE RESOLUTION
Section 5.1 - Mediation
(a)
If a dispute arises between the Client and OCW A which cannot be resolved within a
reasonable time, the issue shall be referred to a mediator.
(b)
The fees and expenses of the mediator will be divided equally between the Parties.
(c)
Involvement in mediation is on a without prejudice basis and does not preclude and is not
a bar to either Party pursuing whatever legal remedies may be available, including
litigation.
ARTICLE 6 - EXISTING AGREEMENTS AND TERMINATION
Section 6.1 - Existinl! A2reements
(a) Subject to Paragraph 6.l(b) of this Agreement, any existing agreements between the
Client and OCWA or the Client and one ofOCWA's predecessors which deals with the
subject matter described in this Agreement (an "Existing Agreement") shall be
terminated.
(b) Notwithstanding any other provisions in this Agreement and in particular Paragraphs
6.1(a) above, all financial obligations of the Client to OCWA or any ofOCWA's
predecessors under any Existing Agreement, including but not limited to the obligation of
the Client to pay any outstanding debt owed in respect of the Facility, shal1 remain in
effect until such time, if applicable, that new financing arrangements have been entered
into between the Client and OCW A.
Section 6.2 - Termination of Afreement
(a) At least twelve calendar months before the expiry of the Initial Term, the Client shall
notify OCW A in writing whether it wishes to renew or terminAte this Agreement at the
end of the Initial Term or any Renewal Term. Ifno notice is given as required by this
section or the parties do not otherwise agree in writing then the Agreement shall renew
for a further five year period ("Renewal Term").
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(b) During the Initial Term or any Renewal Term, this Agreement may be terminated by
either the Client or OCW A ("Termination for Cause") if:
(i) there has been a material breach of the Agreement; and
(ii) the party complaining of the breach has given written notice of the breach to the
other party; and
(üi) the other party does not correct the breach within thirty days of receiving the
notice.
(c) Where there is a material breach and: (i) such material breach has not been corrected
within the time set out in Paragraph 6.2(b) above; (ii) the material breach has not been
referred to mediation pursuant to Section 5.1 of this Agreement; or (iii) the Parties have
not otherwise agreed in writing, then the complaining party may terminAte this Agreement
by giving at least six months notice in writing to the other Party.
(d) If either Party disputes the existence of a breach or that the breach is material, the dispute
may be referred to mediation under Section 5.1 of this Agreement.
(e) After the Initial Term of this Agreement, either the Client or OCW A may terminate this
Agreement as follows:
(i)
for any reason, upon twelve months prior written notice; or
(ii) if there has been a material breach of the Agreement, in accordance with the
procedure described in Paragraphs 6.2(b) and (c) above and Section 6.3 below.
Section 6.3 - Earlv Termination
If there has been Termination for Cause, then the terminating party shall be paid its actual
costs up to the date of termination. Such costs may include, on the part of the Client, the costs of
retendering or hiring a replacement and temporary operator until a permanent operator can be
retained, and in the case of OCW A, the costs of demobilization.
Section 6.4 - Final Settlement
If OCW A ceases to operate and maintain the Facility, there shall be a final settlement of
all accounts with respect to the Actual Charges, Management Fee and any other charges and
expenses incurred by OCW A and amounts owing by or to the Client under this Agreement and
any Existing, no later than ninety days after ocw A ceases to provide the Services.
Tiverton Water Agreement - 00/12/08
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ARTICT.E 7 - INNOVATIONS
Section 7.1- Innovations
Either Party may bring forward innovative ideas for the operation of the Facility and both
parties agree to reasonably consider such innovative ideas.
ARTICLE 8 - GENERAL
Section 8.1 - Year 2000 Compliance
(a) The Parties represent and warrant that all proprietary and non-proprietary computer
hardware, software and firmware (including without limitation all telecommunications,
imbedded systems and premise technology), individually and in combination that are used
by each and that may impact the delivery or the quality of each party's respective
obligations under this Agreement or the ability each to provide accurate invoicing and
payment in respect of the Services (collectively the Parties' Systems), shall be "Year
2000 Compliant", meaning that the Parties' Systems:
(i)
are designed to be capable of operating prior to, during and after the calendar year
2000 AD, without error or reduction in performance relating to date data,
specifically including any error relating to date data which represents or references
different centuries or more than one century;
(ii) are able to accurately manage, manipulate and process date and date-related data
(including but not limited to calculating, comparing, sequencing and sorting)
fÌ'om, into and between the calendar years 1999 and 2000 AD. and fÌ'om, into and
between the twentieth and twenty-first centuries (including leap year calculations);
and
(iii) shall not abnormally terminate or provide invalid or incorrect results due to date
or date-related data, specifically including date data which represents or references
different centuries or more than one century.
(b) At either Party's request, the other shall, at no charge to the requester, demonstrate the
compliance techniques and test procedures to be followed by such party to confirm that
the its systems are Year 2000 Compliant in accordance with paragraph (a).
(c)
Either Party shal1 cause all subcontractors to comply with paragraph (a) with respect to
any component of its Systems to be provided by such subcontractors.
(d) Each Party represents and warrants that the meeting of its obligations under this
Agreement shall not be interrupted due to the failure of those systems which support the
operation of its business to be Year 2000 Compliant.
Tiverton Water Agreement - 00/12/08
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Section 8.2 - A_ment to Govern
If there is any inconsistency between this Agreement and any Schedule to this Agreement,
this Agreement shal1 govern.
Section 8.3 - OwnershiD of TeehnoI02V
The Client acknowledges and agrees that in providing the Services, OCW A may utilize
certain technology developed by or for OCW A, whether existing now or in the future, including
but not limited to technology such as WMMS, Outpost 5 and PDC (the "Technology"). The
Client further agrees that the use of the Technology at the Facility does not in any way give the
Client any ownership rights in or Intellectual Property Rights to, the Technology.
Section 8.4 - H....,lIino
The division of this Agreement into Articles, Sections and Paragraphs and the insertion of
headings are for convenience of reference only and will not affect the construction or interpre-
tation of this Agreement.
Section 8.5 - Entire A2reement
This Agreement constitutes the entire agreement between the Client and OCW A with
respect to the subject matter hereof and cancels and supersedes any prior understandings and
agreements between the Client and OCW A with respect thereto except for the provisions of any
Existing Agreements that remain in effect in accordance with Section 6.1 of this Agreement.
There are no representations, warranties, terms, conditions, undertakings or collateral agree-
ments, express, implied or statutory, between the parties other than as expressly set forth in this
Agreement and in the provisions of the Existing Agreements which remain in effect in
accordance with Paragraphs 6.1 (b) and (c) of this Agreement.
Section 8.6 - ProDOW not Part of A2reement
OCW A's proposal to the Client to operate the Facility shall not form part of this
Agreement.
Section 8.7 - Amendments and Waivers
No amendment to this Agreement will be valid or binding unless it is in writing and duly
executed by both of the parties hereto. No waiver of any breach of any provision of this
Agreement will be effective or binding unless it is in writing and signed by the party purporting
to give such waiver and, unless otherwise provided, will be limited to the specific breach waived.
Section 8.8 - Successors and As,iøns
This Agreement shall operate to the benefit of and be binding upon, the parties hereto and
their successors and assigns. This Agreement may be assigned in the discretion of either party.
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Section 8.9 - Survival
All representations, warranties and indemnities given by each of the parties, shall survive
indefinitely the termination of this Agreement.
Section 8.10 - Severability
If any covenant, obligation or provision hereof or the application thereof to any person or
circumstance shall, to any extent be invalid or unenforceable, the remaining provisions or the
application of each provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall continue to be valid and enforceable.
Section 8.11 - Notices
Any notice, or other communication required or permitted to be given hereunder by either
party to this Agreement shall be in writing and shall be delivered in person, transmitted by fax or
sent by registered mail, addressed as follows:
(i) if to the Client:
Municipality of Kincardine
707 Queen Street
Kincardine, Ontario
N2Z lZO
Telephone:
Fax:
Attention:
(519) 396-3468
(519) 396-8288
Clerk
(ii) if to OCW A:
Ontario Clean Water Agency
3508 Wonderland Road South
London, Ontario
N6L lA7
Telephone:
Fax:
Attention:
(519) 652-7027
(519) 652-7020
Vice President,
Western/Central Area
(b) If delivered in person or transmitted by fax, any such notice or other communication shall
be deemed to have been given and received on the day on which it was delivered or
transmitted (or, if such day is not a Business Day, on the next following Business Day).
(c)
If mailed, any such notice or other communication shall be deemed to have been given
and received on the third Business Day following the date of mailing; provide, however,
that if at the time of mailing or within three Business Days afterwards a labour dispute or
other event occurs, which might reasonably be expected to disrupt the delivery of
documents by mail, any notice or other communication hereunder shall be delivered or
transmitted by fax as provided in this Section 8.11.
(d) A party to this Agreement may change its address for the purpose of this Section by
giving the other party notice of such change of address in the manner provided in this
Section.
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Section 8.12 - Countel1larts
This Agreement may be executed in counterparts, each of which shall constitute an
original and all of which taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF the parties have duly executed this Agreement.
ONTARIO CLEAN WATER AGENCY
BY:~ ~ú
(Authorized Signatory)
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(Authorized Signatory)
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By:
THE CORPORATION OF
THE MUNICIPALITY OF KINCARDINE,
.i1t .70 .;¡ 000
Date of Signing
By:
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Date of Signing
By:
Officer)
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Tiverton Water Agreement - 00/12/08
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SCHEDULE A
TREFACILITY
TIVERTON WATER SUPPLY SYSTEM
Part 1. Description of the Facility
For the purposes of this agreement, the Facility is comprised of the following:
Two well pumping stations including chemical addition facilities, a water distribution system
including necessary valves, hydrants and blow offs, and a water storage standpipe including
automatic con1rols and standby diesel pump.
Part 2. Street Address of the Facility
The street address of the Facility is as follows:
Dent Well Pumping Station-
Briar Hill Well Pumping Station-
Water Storage Standpipe-
Part 3. Diagram of Facility
[Instructions to User - insert a Process Flow Diagram here)
Tiverton Water Agreement - 00/12/08
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SCHEDULE B
DEFINITIONS
·
In this Agreement, the following terms are defined below or in the section in which they first
appear:
"Actual Charges" is defined in Section 4.4 of this Agreement.
"Agreement" means this agreement together with Schedules A, B , C, D and E attached hereto
and all amendments made hereto by written agreement between OCW A and the Client.
"Applicable Laws" is to be broadly interpreted and means, with respect to any person, property,
transaction, event or other matter dealt with in this Agreement, any and all statutes, by-laws,
regulations, enactments, ordinances, rules, permits, consents, approvals, certificates of approval,
licences, judgments, orders, judicial decisions, common-law rules, decrees, injunctions,
agreements, authorizations, regulations, policies, guidelines, directives, objectives, whether
federal, provincial or municipal including, but not limited to all laws relating to occupational
health and safety matters, fire prevention and protection, health protection and promotion, land
use planning, environment, Building Code, or workers' compensation matters.
·
"Authorizations" means each of the sewer use and water by-laws, licences, certificates of
approval, permits, consents and other authorizations required under any law, regulation, by-law
or government policy in order to operate the Facility fÌ'Om time to time.
"Authorized Representative" is defined in Section 2.6 of this Agreement.
"Business Day" means a day other than a Saturday, Sunday or statutory holiday in Ontario.
"Capital Expenditures" means the charges for all capital items in relation to the Facility,
including new or replacement equipment, any overhaul or rebuild of equipment, any non-routine
repair; maintenance, (and excluding routine maintenance); any alterations and any associated
installations, commissioning, including labour and preselection charges, together with OCW A's
service fee.
"Claim" means any claim, fine, penalty, liability, damages, loss and judgement, (including but
not limited to, costs and expenses incidental thereto) of any kind or nature whatsoever.
"Current Term" is defined in Paragraph 4.6(b) of this Agreement.
· "Estimate" is defined in Section 4.2 of this Agreement.
"Excluded Services" is defined in Section 2.3 of this Agreement.
"Existing Agreements" is defined in Paragraph 6.1 (a) of this Agreement.
"Facility" means the [waterlwastewater treatment) facility as defined in the Background to
this Agreement and further described in Schedule A to this Agreement.
Tiverton Water Agreement - 00/12/08
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"Indemnified Parties" is defined in Paragraph 3.3(a) of this Agreement.
"Initial Term" is defined in Section 4.1 of this Agreement.
"Insurance" is defined in Paragraph 2.9(a) and further described in Schedule E.
"Intelleetual Property Rights" means any copyright, trademark, patent, registered design,
design right, topography right, service mark, application to register any of the aforementioned
rights, trade secret, rights in unpatented know-how, right of confidence and any other intellectual
or industrial property rights of any nature whatsoever in any part of the world.
"Management Fee" is defined in Paragraph 4.6(a) of this Agreement.
"Outpost 5" means a remote monitoring and control system designed and constructed by OCW A
and its consultants for the purpose of monitoring and controlling processes at water and
wastewater treatment facilities and their related parts.
"Parties" is defined in the Recitals.
"Parties' Systems" is defined in Paragraph 8.l(a) of this Agreement.
"PDC" or "Process Data Collection" means technology that allows process data to be entered
into a format that can be viewed, manipulated and retrieved in the form of customized reports.
"Renewal Term" is defined in Paragraph 6.2(a) of this Agreement.
"Services" is defined in Section 2.1 and further described in Schedule B to this Agreement.
"Technology" is defined in Section 8.2 of this Agreement.
"Termination for Cause" is defined in Paragraph 6.2(b) of this Agreement.
"Uncontrollable Circumstance" is defined in Paragraph 2.2(c) of this Agreement.
"Unexpected Expenses" is defined in Section 4.7 of this Agreement.
"WMMS" or "Work Management Maintenance System" means a computer program used to
determine a program of preventive maintenance activities for equipment in a facility based on a
risk analysis that considers factors such as equipment life expectancy, present value and
replacement cost.
"Year 2000 Compliant" is defined in Section 8.1 of this Agreement.
Tiverton Water Agreement - 00/12/08
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SCHEDULE C
THE SERVICES
Subject to the provisions of this Agreement, the Services are those services set out in this
Schedule.
1. Oneratinl! Duties
OCW A will perform regularly scheduled inspections and carry out associated operational duties
at the Facility, including all related equipment, bnildings and property to ensure that the Facility
is operating effectively. Specifica1ly, OCW A will:
Water Treatment Plant
inspect process control equipment to ensure proper operation of chlorinators, pumps and
chemical feeders;
check pumping station to ensure that everything is in order (also taking routine readings);
operate pump controls and valve controls for pumping of all process streams;
load chemicals and water in a liquid feed tank;
check wells and level of groundwater to ensure aquifer is not over-pumped; and
add sodium hypochlorite to feed tanks and check chlorine residual.
Water Distribntion
open, exercise and flush water hydrants 4 times annually, make repairs and paint where
necessary and winterize each fall;
inspect stand-pipe yearly through visual inspection, draining, checking controls and
valves, or by monitoring pressure and water levels; and
inspect distribution system, visually for major leaks, sound for minor leaks, exercise main
distribution shut-offvalves and collect samples and monitor chlorine residual.
2. Dav-to-Day Maintenance
OCW A will provide routine maintenance of the Facility as would a reasonable operator.
Specifically, OCW A will:
carry out a routine lubrication program including greasing and oiling as specified in the
lubrication schedule;
perform routine maintenance duties to equipment by following the preventive measures
procedures; by checking 11Iachinery and electrical equipment when required and
overhauling of equipment;
maintain an inventory on all equipment and tools; and
ensure the security of the project by locking doors and gates.
Tiverton Water Aweement - 00/12/08
3.
Capital Imnrovements
·
OCW A, acting as a reasonable operator, will record information on the ftequency of
eqnipment breakdown and repair costs to determine replacement needs. Parts of the
Facility requiring upgrading or improvement will be identified and brought to the
attention of the Client in accordance with Sections 4.2 or 4.7 of this Agreement.
4.
OptimÏ7...tion and Co~Ii"nce of Operation
OCW A will routinely analyze, investigate and, where appropriate, implement measures to
improve the effectiveness and efficiency of the Facility.
OCW A, acting reasonably, is responsible for ensuring an efficient operation of the
process and keeping records on a daily basis by:
Water Treatment and Distribution
·
recording and analyzing water flow, electricity used, chemicals used, chlorine residuals,
turbidity;
checking chemical feed pumps, and performing routine calculations and evaluations and
determining operational adjustment requirements;
calculating, recording and analyzing daily and monthly water flows, pump running hours,
the amount of chlorine, fluoride, and alum used;
routinely conducting the following water tests: chlorine residual, water temperature,
colour, pH, turbidity; recording the results and making operational adjustments such as
increased chemical dosages;
completing the daily operating forms for statistics for computer input and output forms
and correcting the results of the output forms to ensure a proper monitoring of plant flows
and process;
collecting samples for heavy metals, trace organics, conducting routine analysis for bacti
and chemicals and ensuring that they are shipped to the proper labs for analysis;
ensuring that the daily operations comply with and fulfill the requirements of the
Certificate of Approval and other legal documents;
working with the Client to encourage a water conservation program such as water meters,
water efficient shower heads and toilets, wise use of water and promotions; and
repairing water leaks in distribution system.
5.
Re&f'l..torv Matters
·
OCW A wilI handle day-to-day regulatory requirements and contacts with regulatory
authorities in respect of operating issues concerning the Facility. OCW A will review any
inspection reports prepared by regulatory authorities that are provided to OCW A.
Subject to any approvals of the Municipality required by Section 4.2 of this Agreement,
OCW A will either correct deficiencies identified in such inspection reports or negotiate
changes to the reports with the regulatory authorities.
Tiverton Water Agreement - 00/12/08
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Staffinl!
OCW A will staff the Facility with certified operators and other trained staff as required
by regulation under the Ontario Water Resources Act.
All OCW A staff at the Facility will be trained for the normal process operation and
maintenance of the Facility and will also received training on how to deal with emergency
situations should they arise. Staff will continue to receive training on an ongoing basis.
OCW A staff will be available to provide 24 hour coverage at the Facility in case of
emergency.
7.
Emel"l!encv Situations and Safetv
OCW A will ensure that the Facility has a contingency plan in place to deal with
non-routine operational situations and emergency situations such as spills, by-passes,
overflows, hydro interruptions and equipment failure.
Tiverton Water Agreement - 00/12108
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SCHEDULE D
EXCLUDED SERVICES
The following services will not be provided by OCW A and are considered to be
"Excluded Services" for the purposes of this Agreement:
thawing water services;
installation and/or inspection of new water and sewer services;
snow removal at plant, pumping stations and around hydrants;
foam swabbing and pigging watermains;
cost for non-routine sampling and lab analysis;
reading residential water meters;
grass cutting
Tiverton Water Agreement - 00/12/08
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SCHEDULE E
INSURANCE
A summary of the insurance coverage that OCW A will arrange for in respect of the Facility is
described below:
Prooertv Insurance
Perils:
Limits:
"All Risks" including earthquake and flood. Subject to policy
exclusions.
- $2,398,500,000 combined limit anyone loss, casualty, or disaster
- $2,398,500,000 annual aggregate of flood claims
- $2,398,500,000 annual aggregate of earthquake claims
- Replacement Value (Subject to Annual Reports)
- $25,000,000 for extra expenses above and beyond regular costs
associated with running the operation
- Extra expenses associated with shutting down the business for up to
six weeks on interruption by Civil Authority
Deductibles: All Perils - $2,500 except earthquake and flood
Earthquake - the greater 0[$100,000 or 3%;
Flood - $25,000
Property
Insured:
Where the Client's property is repaired or replaced the Client will pay the
deductible. Where OCW A's property is repaired or replaced, OCW A will
pay the deductible. In cases where both the Client's and OCW A's property
is repaired or replaced, the deductible will be paid by both the Client and
OCW A pro rata in accordance with the total loss.
All reported properties including buildings and equipment situated within
1,000 feet of the premises. Includes pumping stations, excludes
underground sewer and water system.
Boiler and Machinery Insurance
Coverage: Insures against loss or damage arising from an accident to scheduled
object in use or connected ready for use.
Objects:
Accident:
Limit:
Boilers, Pressure Vessels (Excess of 15PSI) Piping.
Sudden and accidental breakdown of an object which causes it physical
damage, requiring its repair or replacement.
Subject to policy exclusions.
$10,000,000 per loss.
Tiverton Water Agreement - 00/12/08
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Deductibles: $2,500.
.
Where the Client's property is repaired or replaced the Client will pay the
deductible. Where OCW A's property is repaired or replaced, OCW A will
pay the deductible. In cases where both the Client's and OCW A's property
is repaired or replaced, the deductible will be paid by both the Client and
OCW A pro rata in accordance with the total loss.
Automobile Insurance
Coverage: Automobile Liability.
Limit: $2,000,000
Accident Benefits per Ontario Statutes.
Coverage: Collision
Deductible: $250
Coverage: Comprehensive
Deductible: $100
Deductible: The deductible will be paid by ocw A.
.
ComDrehensive General Liability Insurance
Coverage: Third party liability including legal fees, for property clam'lge and/or
bodily injury as caused by negligence arising out of all operations of the
insured.
Limit: $20,000,000 per occurrence.
Deductible: $2,500
Where OCW A is negligent the deductible will be paid by OCW A. Where
the Client is negligent, the deductible will be paid by the Client. In cases
where both OCW A and the Client are negligent the deductible will be
divided equally.
.
Pollution Liabilitv Insurance
Coverage: Pollution legal liability covering third party property dAmage and
bodily injury and clean up costs for pollution conditions emanating
ftom the Facilities, with a coverage limit 0[$10,000,000.00 per
claim or occurrence and aggregate. Coverage provides for on-site
clean up of the Facilities.
Tiverton Water Agreement - 00/12/08
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Limit:
$10,000,000 per loss on a Claims Made basis with automatic, extended
reporting periods. $10,000,000 aggregate.
Deductible: $50,000.
.
Where OCW A is negligent the deductible will be paid by OCW A. Where
the Client is negligent, the deductible will be paid by the Client. In cases
where both OCW A and the Client are negligent the deductible will be
divided equally.
Where neither the Client nor OCW A is negligent the deductible will be
paid as follows:
Where the Client's property is repaired or replaced the Client will pay the
deductible. Where OCW A's property is repaired or replaced, OCW A will
pay the deductible. In cases where the Client's and OCW A's and/or a third
party's property is repaired or replaced, the deductible will be paid by both
the Client and OCW A pro rata in accordance with the total loss
.
.
Tiverton Water Agreement - 00/12/08
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SERVICES AGREEMENT
THIS AGREEMENT effective as of the first day of January, 2001
e. BETWEEN:
ONTARIO CT.E,o\N WATER AGENCY/AGENCE ONTABTENNE
DES EAux. a corporation established under the CanitaiInve!ltrnent Plan
Act. 1993. chapter 23, Statutes of Ontario
(referred in this Agreement as "OCW A")
AND
THE CORPORATION OF THE MUNICIPALITY OF
KINCARDINE.
(referred in this Agreement as the "Client")
RECITALS
(a) OCW A is in the business of providing operation and maintenance services for water and
wastewater facilities.
.
(b) The Client is the owner of the facility more particularly described in Schedule A, (the
"Facility").
(c) The Client wishes to retain the services of OCW A to operate and maintain the Facility in
accordance with the provisions of this agreement (the" Agreement'').
(d) The Client and OCWA (collectively, the "Parties") are entering this Agreement to clarify
and set out their respective rights and obligations with respect to the operation,
maintenance, invoicing and payment arrangements for the Facility.
r2DO 0
(e) The council of the Client on the .J/)f~ day of Der:",....b-er . 199_ passed by-law No.
~ {)(){) - ,(" 3 authorizing the Client to enter into this Agreement.
NOW THEREFORE in consideration of the mutual covenants contained in this
Agreement and other good and valuable consideration the receipt and sufficiency of which is
hereby irrevocably acknowledged, the Client and OCW A agree as follows:
.
ARTICLE 1 -INDEX TO DEFINITIONS
Section 1.1 - Defmitions
In this Agreement, definitions are set out in Schedule B, or with applicable provisions, as
indicated.
Underwood Water Agreement - 00/12/08
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ARTICLE 2 - RESPONSffiILITIES OF OCW A
Section 2.1 - Retention of OCW A
· The Client retains OCW A to provide management, operation, administration and
maintenance services (as further described in Schedule "C" to this Agreement) in respect of the
Facility (the "Services").
Section 2.2 - Performance of Services
(a) OCW A shall operate the Facility in compliance with all Applicable Laws, regulations and
Authorizations except as described in Paragraphs 2.2(b) and (c) below and in any of the
following circumstances:
(i) the Client not making the Capital Expenditures reasonably recommended by
OCW A in the Estimate as described under Section 4.2 below;
(ii) mechanical failure of any equipment at the Facility unless the mechanical failure
is due to negligent maintenance by OCW A;
·
(iii) the water transmitted to the Facility for treatment contains contaminants
or other substances which cannot be treated or removed by the Facility's
processes;
(b) OCW A may temporarily cease to provide or reduce, the level of provision of Services
hereunder in the event of an emergency, a breakdown or any Uncontrollable Circumstance;
provided, however, that OCW A shall, when practicable, endeavour to give the Client reasonable
advance notice of each such occurrence.
(c) Notwithstanding any other provision of this Agreement, delay in the performance of, or a
failure to perform any term of this Agreement by OCW A, shall not constitute default under this
Agreement or give rise to any claim for damages suffered by the Client if and to the extent
caused by occurrences or circumstances beyond the reasonable control of OCW A, including but
not limited to circumstances where water transmitted to the Facility for treatment contains
contaminallts or other substances which cannot be treated or removed by the Facility's
processing, decrees of government, acts of God (including but not limited to hurricanes,
tornadoes, floods and other weather disturbances), sabotage, strikes, lockouts and other industrial
disturbances, insurrections, war, civil disturbances, riots, explosions, fire and acts of third parties
(any such occurrence or circumstance is referred to as an "Uncontrollable Circumstance").
· (d) OCW A, in its discretion, may take remedial measures that it determines are reasonably
necessary to attempt to maintain compliance with Applicable Laws. Within the context of
Section 2, such measures may be beyond the Services and as such, would be part of the Actual
Charges incurred pursuant to Section 4.4. OCW A shall use its best efforts to contact the Client
and obtain the Client's approval prior to undertaking such remedial measures.
(e) Notwithstanding Paragraph 2.2(d) above, the Client recognizes that such remedial
measures taken by OCW A may be as a result of an emergency situation or an Uncontrollable
Underwood Water Aweement - 00/12108
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Circumstance and that in such situations OCW A's primary concern will be making all reasonable
efforts to maintain compliance with Applicable Laws.
Section 2.3 - Excluded Services
Any services not set out in the Services are excluded 1Ì'Om this Agreement (the
"Excluded Services") and, without limiting the generality of the foregoing, those services set out
in Schedule D are examples of Excluded Services. }fthe Client subsequently requires OCW A to
provide the Excluded Services, the Excluded Services may be provided at additional cost to the
Client.
Section 2.4 - Standard of Care
OCW A shall deliver the Services as would a reasonable operator with like skills in like
circumstances.
Section 2.5 - OCW A as Indeuendent Contractor
In performing the Services, OCW A shall be acting as an independent contractor and only
to the extent and for the specific purposes expressly set forth herein. Neither OCW A nor its
employees, agents or subcontractors shall be subject to the direction and control of the Client,
except as expressly provided in this Agreement.
Section 2.6 - Authorized Renresentatives
Each of OCW A and the Client shall be entitled to designate in writing to the other one or
more individuals who shall be authorized to represent it in connection with the day-to-day
administration of the provisions of this Agreement (the "Authorized Representatives"). Each of
the parties shall be entitled to rely on the acts and approvals given by the other party's Authorized
Representative until such time as it receives a written notification of change in the other party's
Authorized Representative.
Section 2.7 - Regortint!
OCW A shall provide the following reports to the Client:
(a) a facility performance report, within thirty Business Days of the completion of each
calendar quarter or such other period as the Client and OCW A may agree upon.
(b)
a summarized financial report on a quarterly basis indicating expenditures to date and
funds remaining; and
(c) an annual report summarizing relevant activities and maintenance operations, actual
expenditures, laboratory analyses, treatment results, water quality, sludge utilization and
safety activities and any special studies.
Underwood Water Agreement - 00/12/08
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Section 2.8 - Indenmification of the C6ent
·
OCW A shall exonerate, indemnify and hold harmless the Client, its directors,officers,
employees and agents from and against any and all Claims which may be suffered or incurred by,
accrue against or be charged to or recoverable from the Client that are caused by OCW A's
negligence or wilful misconduct when performing the Services. The Client shall be deemed to
hold the provisions of this Section 2.8 that are for the benefit of the Client's officers, employees
and agents in trust for such officers, employees and agents as third party beneficiaries under this
Agreement.
Section 2.9 - Insurance
(a) OCWA shal1 arrange for insurance coverage of the Facility as described in Schedule E to
this Agreement (the "Insurance") and, with the exception of automobile insurance, the Client
shall be an additional insured under such coverage. If there is a significant change in the
insurance coverage described in Schedule E, the Client will be notified of such change.
(b) The Client may, at its cost, maintain additional insurance in respect of the Facility if it
wishes and OCW A shall be an additional insured under such insurance.
·
(c) The Client shal1 be responsible for securing its own insurance for any operations with
which it is involved or which are Excluded Services that are not the subject of this Agreement.
The Client acknowledges that it will have no recourse under OCW A's policies of insurance for
any such operations.
(d) In the event of a claim under the Insurance, the payment of deductibles is as specified in
Schedule E.
Section 2.10 - Regresentations and Warranties ofOCWA
OCW A represents and warrants to the Client that the following are true and correct:
(a) that it has full power and authority and has taken all necessary steps to enter into and
perform its obligations under this Agreement; and
(b) OCW A's staff are trained and capable of carrying out the terms of this Agreement.
ARTICLE 3 - RESPONSIBILmES OF THE CLIENT
· Section 3.1 - Representations and Warranties ofthe C6ent
The Client represents and warrants to OCW A that:
(a) The Client has the full power and authority to enter into and perform its obligations under
this Agreement, including but not limited to, the power and the authority to pay the
Estimate, the Actual Charges, the Management Fee and any other costs that OCW A may
incur in performing the Services, when due and payable under this Agreement.
Underwood Water Agreement - 00/12108
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(b)
The Client has passed all necessary by-laws and obtained all necessary Authorizations to
enable it to enter into and perform its obligations under this Agreement and to operate the
Facility, including without limitation, any Authorizations required from the Ontario
Municipal Board, and each of the Authorizations is in good standing.
(c) The Client has provided OCW A with a true copy of each of the Authorizations referred to
in Paragraph 3.1 (b) above, prior to the date of execution of this Agreement, including a
certified copy of each municipal by-law and other approval required to authorize the
Client to enter into and perform its obligations under this Agreement.
(d) As owner of the Facility the Client is fully aware of its responsibilities and obligations
and, as part of its due diligence in operating the Facilities, has selected OCW A as operator
to provide the Services.
Section 3.2 - Covenants of the Client
The Client hereby covenants for the benefit of OCW A:
(a) The Client agrees to promptly provide OCW A with any information relating to the
Facility which could have a bearing on the provision of Services by OCW A.
(b)
The Client shall repair, maintain and keep in a good working state, in accordance with
good engineering practices and the standards reasonably applicable to an owner of a like
facility, all water works that belong to or are under the control of the Client and that
distribute water from the Facility.
Section 3.3 - Indemnification of OCW A
(a) Subject to Paragraph 3.3(c) below, the Client shall exonerate, indemnify and hold
harmless OCW A, its directors, officers, employees and agents and Her Majesty the Queen in
Right of Ontario, as represented by the Minister of the Environment and all officers, employees
and agents of the Ministry of the Environment (collectively referred to as the "Indemnified
Parties") from and against any and all Claims which may be suffered or incurred by, accrue
against, or be charged to or recoverable from anyone or more of the Indemnified Parties that, in
any way, either arise from or are connected with the operation of this Agreement.
(b) OCW A shall be deemed to hold the provision of this Section 3.3 that are for the benefit
of OCW A's directors, officers, employees and agents and the other Indemnified Parties as
defined above, in trust for all such Indemnified Parties as third party beneficiaries under this
Agreement.
(c) Notwithstanding the other provisions of this Section 3.3, the Client shall not be liable in
respect of any Claim:
(i) to the extent that such Claim is covered by a policy of insurance put in place by
OCW A and/or the Ministry of the Environment, the premiums of which
were paid for by the Client; or
Underwood Water Agreement - 00/12/08
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(ii) where the Claim arose solely as the result of OCW A's negligence or wilful
misconduct in providing the Services.
· ARTICLE 4 - TERM. PAYMENT FOR SERVICES AND 01"llER CHARGES
Section 4.1 - Initial Term of ~ent
This Agreement shall start on January 1,2001, and shall continue in effect for an initial
term of three years (the "Initial Term") and then shall be renewed for successive three year terms
unless terminated under Section 6.2 of this Agreement.
Section 4.2 - Elltimate
No later than September 30th of each year of the Initial Term, OCW A shal1 prepare and
submit to the Client, for its approval, an estimate of the charges associated with the provision of
the Services for the following calendar year, including a list of the Capital Expenditures required
for the operation of the Facility for the following year. The Client will inform OCW A no later
than December 1 st whether the estimate is approved (the approved estimate is referred to as the
"Estimate"). The Estimate, shall be OCW A's authorization to incur the expenditures in the
Estimate. The Estimate for the first year of the Initial Term is $10,900.00.
· Section 4.3 - Pavment of the Elltimate
The Client shall pay OCW A the Estimate for the Initial Term, in twelve monthly
payments, in advance on the first day of each month. Each monthly payment shall be $908.33.
The first payment shall be due and payable on January I, 2001. Payment shall be made by the
Client by pre-authorized debit from an account designated by the Client.
Section 4.4 - Reconeiliation of the Estimate and Actual ChaNes
At the end of each calendar year, OCW A will determine the actual charges for providing
the Services to the Client for that year (the "Actual Charges"). If the Estimate paid by the Client
for the year exceeds the Actual Charges, OCW A will pay the Client the difference within thirty
days of OCW A making the determination. If the Actual Charges exceed the Estimate paid by the
Client, the Client shall pay OCW A the difference within thirty days of OCW A notifying the
Client in writing of the determination.
Section 4.5 - Other Charves
· The Estimate, as reconciled with the Actual Charges, includes all charges associated with
providing the Services, except for the following:
(a) OCW A's Management Fee (as described in Section 4.6 below); and
(b) Unexpected Expenses (as described in Section 4.7 below).
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Section 4.6 - Manal!ement Fee
(a)
In addition to payment of the Estimate, as reconciled with the Actual Charges, the Client
shall also pay OCW A a fixed annual management fee of 51,800.00 (the "Management
Fee") for every year of the Initial Term. The Management Fee shall be paid by the Client
in twelve equal monthly instalments at the same time and in the same manner as the
Estimate.
(b) The Management Fee in any renewal term shall be as agreed by the Client and OCW A. If
the Client and OCW A cannot reach an agreement on the Management Fee for any
renewal term within six months of the beginning of the last year of the current term
(whether the Initial Term or a renewal term) (the "Current Term"), this Agreement will be
terminated six months from the last day of the Current Term. During this six month
period, the Client will pay the Management Fee paid for the last year of the Current Term,
as indicated above, pro-rated over the six month period.
(c) The Management Fee includes all additional charges prescribed by Regulation 157/93
under the Ontario Water Resources Act.
Section 4.7 - Une~peeted Expenses
(a)
"Unexpected Expenses" means unanticipated expenditures, including any Capital
Expenditures that OCW A reasonably incurs in order to address equipment failure, acts of
third parties, or other circumstances beyond OCW A's reasonable control (such as
unregulated septic dumping, illegal industrial waste discharges and overflows), an
emergency situation or any situation resulting from an Uncontrollable Circumstance.
(b) In the event that OCW A is required to incur Unexpected Expenses, the prior approval of
the Client with respect to those Unexpected Expenses will be required only if time
permits. Within ten days of incurring the Unexpected Expenses OCW A will provide the
Client with a report detailing the reasons the Unexpected Expenses were incurred and the
Client shall pay OCW A for the Unexpected Expenses immediately upon receipt of an
invoice from OCW A.
Section 4.8 - Interest on Late Pavments
If the Client's monthly payment of the Annual Price is not available in its designated
bank account on the agreed to date of payment, or if a certified cheque payable to the Ontario
Clean Water Agency, has not been received, OCW A will notifY the Client that the funds were not
available. On the next Business Day, OCW A will again attempt to withdraw the monthly
payment. If funds are not available when the second attempt to withdraw funds is made, OCW A
will notifY the Client that the payment is late, and in addition to paying the monthly payment
owing to OCW A, the Client shall pay OCW A interest at that rate determined by the Minister of
Finance, from time to time, as payable on overdue accounts. in accordance with the Finar¡cial
Administration Act plus any banking and administrative charges.
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Section 4.9 - Partial Pavment of DisDuted Invoices
If the Client disputes any portion of an invoice, the Client shall nonetheless pay to
OCW A the undisputed portion of the invoice by the due date. If any additional amount is finally
determined to be payable to OCW A, the Client shall pay OCW A the additional amount, plus
interest as provided above in Section 4.8 above, within ten days from the date of final
determination.
ARTICT.E 5 - DISPUTE RESOLUTION
Section 5.1 - Mediation
(a)
If a dispute arises between the Client and OCW A which cannot be resolved within a
reasonable time, the issue shal1 be referred to a mediator.
(b)
The fees and expenses of the mediator will be divided equally between the Parties.
(c)
Involvement in mediation is on a without prejudice basis and does not preclude and is not
a bar to either Party pursuing whatever legal remedies may be available, including
litigation.
ARTICLE6-IDUSTINGAGREEMENTSANDTERMlNATION
Section 6.1 - EIistinl!: A2reements
(a) Subject to Paragraph 6. 1 (b) of this Agreement, any existing agreements between the
Client and OCW A or the Client and one of OCW A's predecessors which deals with the
subject matter described in this Agreement (an "Existing Agreement") shall be
tem>inAted
(b) Notwithstanding any other provisions in this Agreement and in particular Paragraphs
6.l(a) above, all financial obligations of the Client to OCWA or any ofOCWA's
predecessors under any Existing Agreement, including but not limited to the obligation of
the Client to pay any outstanding debt owed in respect of the Facility, shall remain in
effect until such time, if applicable, that new financing arrangements have been entered
into between the Client and OCW A.
Section 6.2 - TerminAtion of Acreement
(a) At least twelve calendar months before the expiry of the Initial Term, the Client shall
notify OCW A in writing whether it wishes to renew or terminate this Agreement at the
end of the Initial Term or any Renewal Term. If no notice is given as required by this
section or the parties do not otherwise agree in writing then the Agreement shall renew
for a further five year period ("Renewal Term").
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(b) During the Initial Term or any Renewal Term, this Agreement may be terminated by
either the Client or OCW A ("Termination for Cause") if:
(i)
there has been a material breach of the Agreement; and
(ii) the party complaining of the breach has given written notice of the breach to the
other party; and
(iii) the other party does not correct the breach within thirty days of receiving the
notice.
(c) Where there is a material breach and: (i) such material breach has not been corrected
within the time set out in Paragraph 6.2(b) above; (ü) the material breach has not been
referred to mediation pursuant to Section 5.1 of this Agreement; or (iii) the Parties have
not otherwise agreed in writing, then the complaining party may terminate this Agreement
by giving at least six months notice in writing to the other Party.
(d) If either Party disputes the existence of a breach or that the breach is material, the dispute
may be referred to mediation under Section 5.1 of this Agreement.
(e)
After the Initial Term of this Agreement, either the Client or OCW A may terminate this
Agreement as follows:
(i) for any reason, upon twelve months prior written notice; or
(ii) if there has been a material breach of the Agreement, in accordance with the
procedure described in Paragraphs 6.2(b) and (c) above and Section 6.3 below.
Section 6.3 - Early Termination
If there has been Termination for Cause, then the terminating party shall be paid its actual
costs up to the date of termination. Such costs may include, on the part of the Client, the costs of
retendering or hiring a replacement and temporary operator until a permanent operator can be
retained, and in the case of OCW A, the costs of demobilization.
Section 6.4 - Final Settlement
lfOCWA ceases to operate and maintain the Facility, there shall be a final settlement of
all accounts with respect to the Actual Charges, Management Fee and any other charges and
expenses incurred by OCW A and amounts owing by or to the Client under this Agreement and
any Existing, no later than ninety days after OCW A ceases to provide the Services.
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ARTICLE 7 - INNOVATIONS
Section 7.1 - Innovations
Either Party may bring forward innovative ideas for the operation of the Facility and both
parties agree to reasonably consider such innovative ideas.
ARTICLE 8 - GENERAL
Section 8.1 - Year 2000 ComDliance
(a) The Parties represent and warrant that all proprietary and non-proprietary computer
hardware, software and firmware (including without limitation all telecommunications,
imbedded systems and premise technology), individually and in combination that are used
by each and that may impact the delivery or the quality of each party's respective
obligations under this Agreement or the ability each to provide accurate invoicing and
payment in respect of the Services (collectively the Parties' Systems), shall be "Year
2000 Compliant", meaning that the Parties' Systems:
(i)
are designed to be capable of operating prior to, during and after the calendar year
2000 AD, without error or reduction in performance relating to date data,
specifically including any error relating to date data which represents or references
different centuries or more than one century;
(ii) are able to accurately manage, manipulate and process date and date-related data
(including but not limited to calculating, comparing, sequencing and sorting)
o from, into and between the calendar years 1999 and 2000 AD. and from, into and
between the twentieth and twenty-first centuries (including leap year calculations);
and
(iü) shall not abnormally terminate or provide invalid or incorrect results due to date
or date-related data, specifically including date data which represents or references
different centuries or more than one century.
(b) At either Party's request, the other shall, at no charge to the requester, demonstrate the
compliance techniques and test procedures to be followed by such party to confirm that
the its systems are Year 2000 Compliant in accordance with paragraph (a).
(c)
Either Party shall cause all subcontractors to comply with paragraph (a) with respect to
any component of its Systems to be provided by such subcontractors.
(d) Each Party represents and warrants that the meeting of its obligations under this
Agreement shall not be interrupted due to the failure of those systems which support the
operation of its business to be Year 2000 Compliant.
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Section 8.2 - A2reement to Govern
If there is any inconsistency between this Agreement and any Schedule to this Agreement,
this Agreement shall govern.
Section 8.3 - OwnershiD of TechnolollV
The Client acknowledges and agrees that in providing the Services, OCWA may utilize
certain technology developed by or for OCW A, whether existing now or in the future, including
but not limited to technology such as WMMS, Outpost 5 and PDC (the "Technology"). The
Client further agrees that the use of the Technology at the Facility does not in any way give the
Client any ownership rights in or Intellectual Property Rights to, the Technology.
Section 8.4 - Heødil\l!8
The division of this Agreement into Articles, Sections and Paragraphs and the insertion of
headings are for convenience of reference only and will not affect the construction or interpre-
tation of this Agreement.
Section 8.5 - Entire A2reement
This Agreement constitutes the entire agreement between the Client and OCW A with
respect to the subject matter hereof and cancels and supersedes any prior understandings and
agreements between the Client and OCW A with respect thereto except for the provisions of any
Existing Agreements that remain in effect in accordance with Section 6.1 of this Agreement.
There are no representations, warranties, terms, conditions, undertakings or collateral agree-
ments, express, implied or statutory, between the parties other than as expressly set forth in this
Agreement and in the provisions of the Existing Agreements which remain in effect in
accordance with Paragraphs 6.1(b) and (c) of this Agreement.
Section 8.6 - Prooosal not Part of A2reement
OCW A's proposal to the Client to operate the Facility shall not form part of this
Agreement.
Section 8.7 - AmeDdments and Waivers
No amendment to this Agreement will be valid or binding unless it is in writing and duly
executed by both of the parties hereto. No waiver of any breach of any provision of this
Agreement will be effective or binding unless it is in writing and signed by the party purporting
to give such waiver and, unless otherwise provided, will be limited to the specific breach waived.
Section 8.8 - Successors and Au.en"
This Agreement shall operate to the benefit of and be binding upon, the parties hereto and
their successors and assigns. This Agreement may be assigned in the discretion of either party.
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Section 8.9 - Survival
All representations, warranties and indemnities given by each of the parties, shall survive
indefinitely the termination of this Agreement.
Section 8.10 - Severabilitv
If any covenant, obligation or provision hereof or the application thereof to any person or
circumstance shall, to any extent be invalid or unenforceable, the remaining provisions or the
application of each provision to persons or cin:umstances other than those as to which it is
invalid or unenforceable, shall continue to be valid and enforceable.
Section 8.11 - Notices
Any notice, or other communication required or permitted to be given hereunder by either
party to this Agreement shall be in writing and shall be delivered in person, transmitted by fax or
sent by registered mail, addressed as follows:
(i) if to the Client:
Municipality of Kincardine
707 Queen Street
Kincardine, Ontario
N2Z lZO
Telephone:
Fax:
Attention:
(519) 396-3468
(519) 396-8288
Clerk
(ü) if to OCWA:
Ontario Clean Water Agency
3508 Wonderland Road South
London, Ontario
N6L lA7
Telephone:
Fax:
Attention:
(519) 652-7027
(519) 652-7020
Vice President,
Western/Central Area
(b) If delivered in person or transmitted by fax, any such notice or other communication shall
be deemed to have been given and received on the day on which it was delivered or
transmitted (or, if such day is not a Business Day, on the next following Business Day).
(c)
If mailed, any such notice or other communication shall be deemed to have been given
and received on the third Business Day following the date of mailing; provide, however,
that if at the time of mailing or within three Business Days afterwards a labour dispute or
other event occurs, which might reasonably be expected to disrupt the delivery of
documents by mail, any notice or other communication hereunder shal1 be delivered or
transmitted by fax as provided in this Section 8.11.
(d) A party to this Agreement may change its address for the purpose of this Section by
giving the other party notice of such change of address in the manner provided in this
Section.
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Section 8.12 - Counteroarts
This Agreement may be executed in counterparts, each of which shall constitute an
original and all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF the parties have duly executed this Agreement.
ONTARIO CLEAN WATER AGENCY
By:f/)a átL,ú
(Authorized Signatory)
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Date of Signing
~/O
(Authorized Signatory)
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By:
THE CORPORATION OF
THE MUNICIPALITY OF KINCARDINE,
lJec .20 .1ððfJ
Date of Signing
By:
~ .;)ð 02000
.
Date of Signing
By:
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SCHEDULE A
THE FACILITY
Underwood Water Supply System
Part I. Description of the Facility
For the purposes of this agreement, the Facility is comprised of the following:
One well pumping station including chemical addition facilities, a water distribution system
including necessary valves.
Part 2. Street Address of the Facility
The street address of the well Facility is as follows:
Part Lot 5, Concession VI, Township of Bruce
Part 3. Diagram of Facility
- insert a Process Flow Diagram here
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SCHEDULE B
DEFINITIONS
· In this Agreement, the following terms are defined below or in the section in which they fIrst
appear:
"Actual Charges" is defined in Section 4.4 of this Agreement.
"Agreement" means this agreement together with Schedules A, B , C, D and E attached hereto
and all amendments made hereto by written agreement between OCW A and the Client.
"AppHcable Laws" is to be broadly interpreted and means, with respect to any person, property,
transaction, event or other matter dealt with in this Agreement, any and all statutes, by-laws,
regulations, enactments, ordinances, rules, permits, consents, approvals, certificates of approval,
licences, judgments, orders, judicial decisions, common-law rules, decrees, injunctions,
agreements, authorizations, regulations, policies, guidelines, directives, objectives, whether
federal, provincial or municipal including, but not limited to all laws relating to occupational
health and safety matters, fire prevention and protection, health protection and promotion, land
use planning, environment, Building Code, or workers' compensation matters.
·
"Authorizations" means each of the sewer use and water by-laws, licences, certificates of
approval, permits, consents and other authorizations required under any law, regulation, by-law
or government policy in order to operate the Facility from time to time.
"Authorized Representative" is defined in Section 2.6 of this Agreement.
"Business Day" means a day other than a Saturday, Sunday or statutory holiday in Ontario.
"Capital Expenditures" means the charges for all capital items in relation to the Facility,
including new or replacement equipment, any overhaul or rebuild of equipment, any non-routine
repair; maintenance, (and excluding routine maintenance); any alterations and any associated
installations, commissioning, including labour and preselection charges, together with OCW A's
service fee.
"Claim" means any claim, fine, penalty, liability, damages, loss and judgement, (including but
not limited to, costs and expenses incidental thereto) of any kind or nature whatsoever.
"Current Term" is defined in Paragraph 4.6{b) of this Agreement.
· "Estimate" is defined in Section 4.2 of this Agreement.
"Excluded Services" is defined in Section 2.3 of this Agreement.
"Existing Agreements" is defined in Paragraph 6. 1 (a) of this Agreement.
"Facility" means the water supply facility as defined in the Background to this Agreement and
further described in Schedule A to this Agreement.
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"Indemnified Parties" is defined in Paragraph 3.3(a) of this Agreement.
"Initial Term" is defined in Section 4.1 of this Agreement.
"Insurance" is defined in Paragraph 2.9(a) and further described in Schedule E.
"InteUectual Property Rights" means any copyright, trademark, patent, registered design,
design right, topography right, service mark, application to register any of the aforementioned
rights, trade secret, rights in unpatented know-how, right of confidence and any other intellectual
or industrial property rights of any nature whatsoever in any part of the world.
"Management Fee" is defined in Paragraph 4.6(a) of this Agreement.
"Outpost 5" means a remote monitoring and control system designed and constructed by OCW A
and its consultants for the purpose of monitoring and controlling processes at water and
wastewater treatment facilities and their related parts.
"Parties" is defined in the Recitals.
"Parties' Systems" is defined in Paragraph 8.1 (a) of this Agreement.
"PDC" or "Process Data Collection" means technology that allows process data to be entered
into a format that can be viewed, manipulated and retrieved in the form of customized reports.
"Renewal Term" is defined in Paragraph 6.2(a) of this Agreement.
"Services" is defined in Section 2.1 and further described in Schedule B to this Agreement.
"Technology" is defined in Section 8.2 of this Agreement.
"Termination for Cause" is defined in Paragraph 6.2(b) of this Agreement.
"Uncontrollable Circumstance" is defined in Paragraph 2.2(c) of this Agreement.
"Unexpected Expenses" is defined in Section 4.7 of this Agreement.
"WMMS" or "Work Management Maintenance System" means a computer program used to
determine a program of preventive maintenance activities for equipment in a facility based on a
risk analysis that considers factors such as equipment life expectancy, present value and
replacement cost.
"Year 2000 Compliant" is defined in Section 8.1 of this Agreement.
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SCHEDULE C
THE SERVICES
Subject to the provisions of this Agreement, the Services are those services set out in this
Schedule.
1. OD~~tinøDutia
Specifically, OCW A will perform regularly scheduled inspections and carry out associated
operational duties at the Facility, including all related equipment, buildings and property to
ensure that the Facility is operating effectively. Specifically, OCW A will:
Water Treatment plgnt
inspect process control equipment to ensure proper operation of chlorinators, pumps. and
chemical feeders;
check station/plant to ensure that everything is in order (also taking routine J'P.Aliil'lg8);
operate pump controls and valve controls for pumping of all process streams;
load chemicals and water in a liquid feed tank; and
add sodium hypochlorite to feed tanks and check chlorine residual.
Water Distribution
open, exercise and flush water blow-offs annually, make repairs and paint where
necessary and winterize each fall; and
inspect distribution system, visually for major leaks, exercise main distribution shut-off
valves and collect samples and monitor chlorine residual.
2. Day-to-Day Mgintenance
OCW A will provide routine maintenance of the Facility as would a reasonable operator.
Specifically, OCWA will:
perform routine maintenance duties to equipment by following the preventive measures
procedures; by checking machinery and electrical equipment when required and
overhauling of equipment;
maintain an inventory on all equipment and tools; and
ensure the security of the project by locking doors and gates.
3.
Ca,pital Improvements
OCW A, acting as a reasonable operator, will record information on the frequency of
equipment breakdown and repair costs to determine replacement needs. Parts of the
Facility requiring upgrading or improvement will be identified and brought to the
attention of the Client in accordance with Sections 4.2 or 4.7 of this Agreement.
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4.
Optimization and ComDliRnce of Oneration
·
OCW A will routinely analyze, investigate and, where appropriate, implement measures to
improve the effectiveness and efficiency of the Facility.
OCW A, acting reasonably, is responsible for ensuring an efficient operation of the
process and keeping records on a daily basis by:
Water Treatment and Distribution
·
recording and analyzing water flow, chemicals used, chlorine residuals, turbidity;
checking chemical feed pumps, and performing routine calculations and evaluations and
determining operational adjustment requirements;
calculating, recording and analyzing daily and monthly water flows, pump running hours,
the amount of chlorine, fluoride, and alum used;
routinely conducting the following water tests: chlorine residual, water temperature,
colour, pH, turbidity; recording the results and making operational adjustments such as
increased chemical dosages;
completing the daily operating forms for statistics for computer input and output forms
and correcting the results of the output forms to ensure a proper monitoring of plant flows
and process;
collecting samples for heavy metals, trace organics, conducting routine analysis for bacti
and chemicals and ensuring that they are shipped to the proper labs for analysis;
ensuring that the daily operations comply with and fulfill the requirements of the
Certificate of Approval and other legal documents;
working with the Client to encourage a water conservation program such as water meters,
water efficient shower heads and toilets, wise use of water and promotions; and
repairing water leaks in distribution system.
s.
RelPllatorv Matters
OCW A will handle day-to-day regulatory requirements and contacts with regulatory
authorities in respect of operating issues concerning the Facility. OCW A will review any
inspection reports prepared by regulatory authorities that are provided to OCW A.
Subject to any approvals of the Municipality required by Section 4.2 of this Agreement,
OCW A will either correct deficiencies identified in such inspection reports or negotiate
changes to the reports with the regulatory authorities.
6.
Staffml
·
OCW A will staff the Facility with certified operators and other trained staff as required
by regulation under the Ontario Water Resources Act.
All OCW A staff at the Facility will be trained for the normal process operation and
maintenance of the Facility and will also received training on how to deal with emergency
situations should they arise. Staff will continue to receive training on an ongoing basis.
OCW A staffwill be available to provide 24 hour coverage at the Facility in the event of
emergencies.
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7.
Ememencv Situations and Safety
OCW A will ensure that the Facility has a contingency plan in place to deal with
non-routine operational situations and emergency situations such as spills, by-passes,
overflows, hydro interruptions and equipment failure.
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SCJnmm.E D
EXCLUDED SERVICES
The following services willlW! be provided by OCW A and are considered to be
"Excluded Services" for the purposes of this Agreement:
thawing water services;
installation and/or inspection of new water services from the property line to the building;
snow removal at plant, pumping stations and around hydrants;
foam swabbing and pigging watermains;
cost for non-routine sampling and lab analysis;
reading residential water meters;
grass cutting
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SCHEDULE E
INSURANCE
A summary of the insurance coverage that OCW A will arrange for in respect of the Facility is
described below:
Pronertv TnRunmce
Perils:
Limits:
"All Risks" including earthquake and flood. Subject to policy
exclusions.
- $2,398,500,000 combined limit anyone loss, casualty, or disaster
- $2,398,500,000 annual aggregate of flood claims
- $2,398,500,000 annual aggregate of earthquake claims
- Replacement Value (Subject to Annual Reports)
- $25,000,000 for extra expenses above and beyond regular costs
associated with running the operation
- Extra expenses associated with shutting down the business for up to
six weeks on interruption by Civil Authority
Deductibles: All Perils - $2,500 except earthquake and flood
Earthquake - the greater of $100,000 or 3%;
Flood - $25,000
Property
Insured:
Where the Client's property is repaired or replaced the Client will pay the
deductible. Where OCW A's property is repaired or replaced, OCW A will
pay the deductible. In cases where both the Client's and OCW A's property
is repaired or replaced, the deductible will be paid by both the Client and
OCW A pro rata in accordance with the total loss.
All reported properties including buildings and equipment situated within
1,000 feet of the premises. Includes pumping stations, excludes
underground sewer and water system.
Boiler and Maehinery In.uranee
Coverage: Insures against loss or damage arising uom an accident to scheduled
object in use or connected ready for use.
Objects:
Accident:
Limit:
Boilers, Pressure Vessels (Excess of l5PSI) Piping.
Sudden and accidental breakdown of an object which causes it physical
damage, requiring its repair or replacement.
Subject to policy exclusions.
$10,000,000 per loss.
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Deductibles: $2,500.
.
Where the Client's property is repaired or replaced the Client will pay the
deductible. Where OCW A's property is repaired or replaced, OCW A will
pay the deductible. In cases where both the Client's and OCW A's property
is repaired or replaced, the deductible will be paid by both the Client and
OCW A pro rata in accordance with the total loss.
AutomobHe TnMurance
Coverage: Automobile Liability.
Limit: $2,000,000
Accident Benefits per Ontario Statutes.
Coverage: Collision
Deductible: $250
Coverage: Comprehensive
Deductible: $100
Deductible: The deductible will be paid by OCW A.
.
Comprehensive General Liabilitv TnMurance
Coverage: Third party liability including legal fees, for property damage and/or
bodily injury as caused by negligence arising out of all operations of the
insured.
Limit: $20,000,000 per occurrence.
Deductible: $2,500
Where OCW A is negligent the deductible will be paid by OCW A. Where
the Client is negligent, the deductible will be paid by the Client. In cases
where both OCW A and the Client are negligent the deductible will be
divided equally.
.
Pollution Liability Insurance
Coverage: Pollution legailiability covering third party property dam9ge and
bodily injury and clean up costs for pollution conditions emanating
from the Facilities, with a coverage limit 0[$10,000,000.00 per
claim or occurrence and aggregate. Coverage provides for on-site
clean up of the Facilities.
Underwood Water Agreement - 00/12108
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Limit:
$10,000,000 per loss on a Claims Made basis with automatic, extended
reporting periods. $10,000,000 aggregate.
Deductible: $50,000.
Where OCW A is negligent the deductible will be paid by OCW A. Where
the Client is negligent, the deductible will be paid by the Client. In cases
where both OCW A and the Client are negligent the deductible will be
divided equally.
Where neither the Client nor OCW A is negligent the deductible will be
paid as follows:
Where the Client's property is repaired or replaced the Client will pay the
deductible. Where OCW A's property is repaired or replaced, OCW A will
pay the deductible. In cases where the Client's and OCW A's and/or a third
party's property is repaired or replaced, the deductible will be paid by both
the Client and OCW A pro rata in accordance with the total loss
Underwood Water Agreement - 00/12/08
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SERVICES AGREEMENT
THIS AGREEMENT effective as of the first day of January, 2001
· BETWEEN:
ONTARIO CLEAN WATER AGENCY/AGENCE ONTARIENNE
DES EAUX. a corporation established under the CaoitalInvestment Plan
Act. 1993. chapter 23, Statutes of Ontario
(referred in this Agreement as IIOCW A")
AND
THE CORPORATION OF THE MUNICIPALITY OF
KINCARDINE.
(referred in this Agreement as the "Client")
RECITALS
(a) OCW A is in the business of providing operation and maintenance services for water and
wastewater facilities.
·
(b)
The Client is the owner of the facility more particularly described in Schedule A, (the
"Facility").
(c)
The Client wishes to retain the services of OCW A to operate and maintain the Facility in
accordance with the provisions of this agreement (the "Agreement").
(d)
The Client and OCWA (collectively, the "Parties") are entering this Agreement to clarify
and set out their respective rights and obligations with respect to the operation,
maintenance, invoicing and payment arrangements for the Facility.
(e)
dC<O
The council of the Client on the .;¡rðJI, day of A-c."..iH~ . 199_passed by-law No.
;)ccð·/(P3 authorizing the Client to enter into this Agreement.
NOW THEREFORE in consideration of the mutual covenants contained in this
Agreement and other good and valuable consideration the receipt and sufficiency of which is
hereby irrevocably acknowledged, the Client and OCW A agree as follows:
·
ARTICT.E 1 -INDEX TO DEFINITIONS
Section 1.1 - Defmitions
In this Agreement, definitions are set out in Schedule B, or with applicable provisions, as
indicated.
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ARTICLE 2 - RESPONSmILITŒS OF OCW A
Section 2.1 - Retention of OCW A
·
The Client retains OCW A to provide management, operation, administration and
maintenance services (as further described in Schedule "C" to this Agreement) in respect of the
Facility (the "Services").
Section 2.2 - Performance of Services
(a) OCW A shall operate the Facility in compliance with all Applicable Laws, regulations and
Authorizations except as described in Paragraphs 2.2(b) and (c) below and in any of the
following circumstances:
(i) the Client not making the Capital Expenditures reasonably recommended by
OCW A in the Estimate as described under Section 4.2 below;
(ii) mechanical failure of any equipment at the Facility unless the mechanical failure
is due to negligent maintenance by OCW A;
·
(iii) the water transmitted to the Facility for treatment contains contaminants
or other substances which cannot be treated or removed by the Facility's
processes;
(b) OCW A may temporarily cease to provide or reduce, the level of provision of Services
hereunder in the event of an emergency, a breakdown or any Uncontrollable Circumstance;
provided, however, that OCW A shall, when practicable, endeavour to give the Client reasonable
advance notice of each such occurrence.
( c) Notwithstanding any other provision of this Agreement, delay in the performance of, or a
failure to perform any term of this Agreement by OCW A, shall not constitute default under this
Agreement or give rise to any claim for damages suffered by the Client if and to the extent
caused by occurrences or circumstances beyond the reasonable control of OCW A, including but
not limited to circumstances where water transmitted to the Facility for treatment contains
contaminants or other substances which cannot be treated or removed by the Facility's
processing, decrees of government, acts of God (including but not limited to hurricanes, 0
tornadoes, floods and other weather disturbances), sabotage, strikes, lockouts and other industrial
disturbances, insurrections, war, civil disturbances, riots, explosions, fire and acts of third parties
(any such occurrence or circumstance is referred to as an "Uncontrollable Circumstance").
·
(d) OCW A, in its discretion, may take remedial measures that it determines are reasonably
necessary to attempt to maintain compliance with Applicable Laws. Within the context of
Section 2, such measures may be beyond the Services and as such, would be part of the Actual
Charges incurred pursuant to Section 4.4. OCW A shall use its best efforts to contact the Client
and obtain the Client's approval prior to undertaking such remedial measures.
(e) Notwithstanding Paragraph 2.2(d) above, the Client recognizes that such remedial
measures taken by OCW A may be as a result of an emergency situation or an Uncontrollable
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Circumstance and that in such situations OCWA's primary concern will be making all reasonable
efforts to maintain compliance with Applicable Laws.
Section 2.3 - Excluded Services
Any services not set out in the Services are excluded from this Agreement (the
"Excluded Services") an~ without limiting the generality of the foregoing, those services set out
in Schedule D are examples of Excluded Services. If the Client subsequently requires OCW A to
provide the Excluded Services, the Excluded Services may be provided at additional cost to the
Client.
Section 2.4 - StIondnd of Care
OCW A shall deliver the Services as would a reasonable operator with like skills in like
circumstances.
Section 2.5 - OCW A as Indenendent Contractor
In performing the Services, OCW A shall be acting as an independent contractor and only
to the extent and for the specific purposes expressly set forth herein. Neither OCW A nor its
employees, agents or subcontractors shall be subject to the direction and control of the Client,
except as expressly provided in this Agreement.
Section 2.6 - Authorized Representatives
Each of OCW A and the Client shall be entitled to designate in writing to the other one or
more individuals who shall be authorized to represent it in connection with the day-to-day
administration of the provisions of this Agreement (the "Authorized Representatives"). Each of
the parties shall be entitled to rely on the acts and approvals given by the other party's Authorized
Representative until such time as it receives a written notification of change in the other party's
Authorized Representative.
Section 2.7 - Reoortinl!
OCW A shall provide the following reports to the Client:
(a) a facility performance report, within thirty Business Days of the completion of each
calendar quarter or such other period as the Client and OCW A may agree upon.
(b)
a summarized financial report on a quarterly basis indicating expenditures to date and
funds remaining; and
(c) an annual report summarizing relevant activities and maintenance operations, actual
expenditures, laboratory analyses, treatment results, water quality, sludge utilization and
safety activities and any special studies.
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Section 2.8 - Indemnification of the Client
OCW A shall exonerate, indemnify and hold harmless the Client, its directors,officers,
employees and agents ftom and against any and all Claims which may be suffered or incurred by,
accrue against or be charged to or recoverable from the Client that are caused by OCW A's
negligence or wilful misconduct when performing the Services. The Client shall be deemed to
hold the provisions of this Section 2.8 that are for the benefit of the Client's officers, employees
and agents in trust for such officers, employees and agents as third party beneficiaries under this
Agreement.
Section 2.9 - Insurance
(a) OCW A shall arrange for insurance coverage of the Facility as described in Schedule E to
this Agreement (the "Insurance") and, with the exception of automobile insurance, the Client
shal1 be an additional insured under such coverage. If there is a significant change in the
insurance coverage described in Schedule E, the Client will be notified of such change.
(b) The Client may, at its cost, maintain additional insurance in respect of the Facility if it
wishes and OCW A shall be an additional insured under such insurance.
(c) The Client shall be responsible for securing its own insurance for any operations with
which it is involved or which are Excluded Services that are not the subject of this Agreement.
The Client acknowledges that it will have no recourse under OCW A's policies of insurance for
any such operations.
(d) In the event of a claim under the Insurance, the payment of deductibles is as specified in
Schedule E.
Section 2.10 - Renresentations and Warnmti... ofOCWA
OCW A represents and warrants to the Client that the following are true and correct:
(a) that it has full power and authority and has taken all necessary steps to enter into and
perform its obligations under this Agreement; and
(b) OCW A's staff are trained and capable of carrying out the terms of this Agreement.
ARTICLE 3 - RESPONSŒILITIES OF THE CLIENT
· Section 3.1 - Re.presentations and Warranties of the Client
The Client represents and warrants to OCW A that:
(a) The Client has the full power and authority to enter into and perform its obligations under
this Agreement, including but not limited to, the power and the authority to pay the
Estimate, the Actual Charges, the Management Fee and any other costs that OCW A may
incur in performing the Services, when due and payable under this Agreement.
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(b)
The Client has passed all necessary by-laws and obtained all necessary Authorizations to
enable it to enter into and perform its obligations under this Agreement and to operate the
Facility, including without limitation, any Authorizations required &om the Ontario
Municipal Board, and each of the Authorizations is in good standing.
·
(c) The Client has provided OCWA with a true copy of each of the Authorizations referred to
in Paragraph 3.1(b) above, prior to the date of execution of this Agreement, including a
certified copy of each municipal by-law and other approval required to authorize the
Client to enter into and perform its obligations under this Agreement.
(d) As owner of the Facility the Client is fully aware of its responsibilities and obligations
and, as part of its due diligence in operating the Facilities, has selected OCW A as operator
to provide the Services.
Section 3.2 - Covenants of the Client
The Client hereby covenants for the benefit of OCW A:
(a) The Client agrees to promptly provide OCW A with any information relating to the
Facility which could have a bearing on the provision of Services by OCW A.
·
(b)
The Client shall repair, maintain and keep in a good working state, in accordance with
good engineering practices and the standards reasonably applicable to an owner of a like
facility, all water works that belong to or are under the control of the Client and that
distribute water &om the Facility.
Section 3.3 - Indemnification of OCW A
(a) Subject to Paragraph 3.3(c) below, the Client shall exonerate, indemnify and hold
harmless OCW A, its directors, officers, employees and agents and Her Majesty the Queen in
Right of Ontario, as represented by the Minister of the Environment and all officers, employees
and agents of the Ministry of the Environment (collectively referred to as the "Indemnified
Parties") &om and against any and all Claims which may be suffered or incurred by, accroe
against, or be charged to or recoverable &om anyone or more of the Indemnified Parties that, in
any way, either arise &om or are connected with the operation of this Agreement.
(b) OCWA shall be deemed to hold the provision of this Section 3.3 that are for the benefit
of OCW A's directors, officers, employees and agents and the other Indemnified Parties as
defined above, in trust for all such Indemnified Parties as third party beneficiaries under this
Agreement.
·
(c) Notwithstanding the other provisions of this Section 3.3, the Client shall not be liable in
respect of any Claim:
(i) to the extent that such Claim is covered by a policy of insurance put in place by
OCW A and/or the Ministry of the Environment, the premiums of which
were paid for by the Client; or
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(ii)
where the Claim arose solely as the result of OCW A's negligence or wilful
misconduct in providing the Services.
·
ARTICLE 4 - TERM. PAYMENT FOR SERVICES AND OTHER CHARGES
Section 4.1 - Initial Term of A2reement
This Agreement shall start on January 1, 200 1, and shall continue in effect for an initial
term of three years (the "Initial Term") and then shall be renewed for successive three year terms
unless terminated under Section 6.2 of this Agreement.
Section 4.2 - EJdimate
No later than September 30th of each year of the Initial Term, OCW A shall prepare and
submit to the Client, for its approval, an estimate of the charges associated with the provision of
the Services for the following calendar year, including a list of the Capital Expenditures required
for the operation of the Facility for the following year. The Client will inform OCW A no later
than December 1 st whether the estimate is approved (the approved estimate is referred to as the
"Estimate"). The Estimate, shall be OCW A's authorization to incur the expenditures in the
Estimate. The Estimate fl?r the first year of the Initial Term is 516,492.00.
· Section 4.3 - Pavment of the Estimate
The Client shall pay OCW A the Estimate for the Initial Term, in twelve monthly
payments, in advance on the first day of each month. Each monthly payment shall be 51,374.33.
The first payment shal1 be due and payable on January 1,2001. Payment shall be made by the
Client by pre-authorized debit ftom an account designated by the Client.
Section 4.4 - Reconciliation of the Estimate and Actual Chal'lJe8
At the end of each calendar year, OCW A will determine the actual charges for providing
the Services to the Client for that year (the "Actual Charges"). If the Estimate paid by the Client
for the year exceeds the Actual Charges, OCW A will pay the Client the difference within thirty
days of OCW A making the determination. If the Actual Charges exceed the Estimate paid by the
Client, the Client shall pay OCW A the difference within thirty days of OCW A notifying the
Client in writing of the determination.
Section 4.5 - Other Chan:e8
· The Estimate, as reconciled with the Actual Charges, includes all charges associated with
providing the Services, except for the following:
(a) OCW A's Management Fee (as described in Section 4.6 below); and
(b) Unexpected Expenses (as described in Section 4.7 below).
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Section 4.6 - Manal!ement Fee
(a)
In addition to payment of the Estimate, as reconciled with the Actual Charges, the Client
shall also pay OCW A a fixed annual management fee of$2,210.00 (the "Management
Fee") for every year of the Initial Term. The Management Fee shall be paid by the Client
in twelve equal monthly instalments at the same time and in the same manner as the
Estimate.
·
(b) The Management Fee in any renewal term shall be as agreed by the Client and OCW A. If
the Client and OCW A cannot reach an agreement on the Management Fee for any
renewal term within six months of the beginning of the last year of the current term
(whether the Initial Term or a renewal term) (the "Current Term"), this Agreement will be
terminated six months &om the last day of the Current Term. During this six month
period, the Client will pay the Management Fee paid for the last year of the Current Term,
as indicated above, pro-rated over the six month period.
(c) The Management Fee includes all additional charges prescribed by Regulation 157/93
under the Ontario Water Resources Act.
Section 4.7 - Une:s;peeted E:S;D"n-es
(a)
"Unexpected Expenses" means unanticipated expenditures, including any Capital
Expenditures that OCW A reasonably incurs in order to address equipment failure, acts of
third parties, or other circumstances beyond OCW A's reasonable control (such as
unregulated septic dumping, illegal industrial waste discharges and overflows), an
emergency situation or any situation resulting &om an Uncontrollable Circumstance.
·
(b) In the event that OCW A is required to incur Unexpected Expenses, the prior approval of
the Client with respect to those Unexpected Expenses will be required only if time
permits. Within ten days of incurring the Unexpected Expenses OCW A will provide the
Client with a report detailing the reasons the Unexpected Expenses were incurred and the
Client shall pay OCW A for the Unexpected Expenses inunediately upon receipt of an
invoice from OCW A.
Section 4.8 - Interest on Late Payments
·
If the Client's monthly payment of the Annual Price is not available in its designated
bank account on the agreed to date of payment, or if a certified cheque payable to the Ontario
Clean Water Agency, has not been received, OCW A will notify the Client that the funds were not
available. On the next Business Day, OCW A will again attempt to withdraw the monthly
payment. If funds are not available when the second attempt to withdraw funds is made, oèw A
will notify the Client that the payment is late, and in addition to paying the monthly payment
owing to OCW A, the Client shall pay OCW A interest at that rate determined by the Minister of
Finance, &om time to time, as payable on overdue accounts, in accordance with the Finan";a¡
Administration Act plus any banking and administrative charges.
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Section 4.9 - Partial Pavment of Disputed Invoices
If the Client disputes any portion of an invoice, the Client shall nonetheless pay to
OCW A the undisputed portion of the invoice by the due date. If any additional amount is finally
determined to be payable to OCW A, the Client shall pay OCW A the additional amount, plus
interest as provided above in Section 4.8 above, within ten days from the date of final
determination.
ARTICI .F. 5 - DISPUTE RESOLUTION
Section 5.1 - Mediation
(a)
If a dispute arises between the Client and OCW A which cannot be resolved within a
reasonable time, the issue shall be referred to a mediator.
(b)
The fees and expenses of the mediator will be divided equally between the Parties.
(c)
Involvement in mediation is on a without prejudice basis and does not preclude and is not
a bar to either Party pursuing whatever legal remedies may be available, including
litigation.
ARTICLE 6 - EXISTING AGREEMENTS AND TERMINATION
Section 6.1 - EIistine A2reements
(a) Subject to Paragraph 6.1(b) of this Agreement, any existing agreements between the
Client and OCW A or the Client and one of OCW A's predecessors which deals with the
subject matter described in this Agreement (an "Existing Agreement") shall be
terminated.
(b) Notwithstanding any other provisions in this Agreement and in particular Paragraphs
6. 1 (a) above, all financial obligations of the Client to OCWA or any ofOCWA's
predecessors under any Existing Agreement, including but not limited to the obligation of
the Client to pay any outstBnÆng debt owed in respect of the Facility, shall remain in
effect until such time, if applicable, that new financing arrangements have been entered
into between the Client and OCW A.
Section 6.2 - Termination of A¡reement
(a) At least twelve calendar months before the expiry of the Initial Term, the Client shall
notify oew A in writing whether it wishes to renew or terminate this Agreement at the
end of the Initial Term or any Renewal Term. Ifno notice is given as required by this
section or the parties do not otherwise agree in writing then the Agreement shall renew
for a further five year period ("Renewal Term~).
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(b) During the Initial Term or any Renewal Term, this Agreement may be terminated by
either the Client or OCW A ("Termination for Cause") if:
(i)
· (ii)
(iii)
there has been a material breach of the Agreement; and
the party complaining of the breach has given written notice of the breach to the
other party; and
the other party does not correct the breach within thirty days of receiving the
notice.
(c) Where there is a material breach and: (i) such material breach has not been corrected
within the time set out in Paragraph 6.2(b) above; (ii) the material breach has not been
referred to mediation pursuant to Section 5.1 of this Agreement; or (iii) the Parties have
not otherwise agreed in writing, then the complaining party may terminate this Agreement
by giving at least six months notice in writing to the other Party.
(d) If either Party disputes the existence of a breach or that the breach is material, the dispute
may be referred to mediation under Section 5.1 of this Agreement.
( e) After the Initial Term of this Agreement, either the Client or OCW A may terminate this
Agreement as follows:
·
(i)
for any reason, upon twelve months prior written notice; or
(ii) if there has been a material breach of the Agreement, in accordance with the
procedure described in Paragraphs 6.2(b) and (c) above and Section 6.3 below.
Section 6.3 - Earlv Termination
If there has been Termination for Cause, then the terminating party shall be paid its actual
costs up to the date of termination. Such costs may include, on the part of the Client, the costs of
retendering or hiring a replacement and temporary operator until a permanent operator can be
retained, and in the case of OCW A. the costs of demobilization.
Section 6.4 - Final Settlement
If OCW A ceases to operate and maintain the Facility, there shall be a final settlement of
all accounts with respect to the Actual Charges, Management Fee and any other charges and
expenses incurred by OCW A and amounts owing by or to the Client under this Agreement and
any Existing, no later than ninety days after OCW A ceases to provide the Services.
·
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ARTICLE 7 -INNOVATIONS
Section 7.1 - Innovations
Either Party may bring forward innovative ideas for the operation of the Facility and both
parties agree to reasonably consider such innovative ideas.
ARTICLE 8 - GENERAL
Section 8.1 - Year 2000 Compli8nce
(a) The Parties represent and warrant that all proprietary and non-proprietary computer
hardware, software and firmware (including without limitation all telecommunications,
imbedded systems and premise technology), individually and in combination that are used
by each and that may impact the delivery or the quality of each party's respective
obligations under this Agreement or the ability each to provide accurate invoicing and
payment in respect of the Services (collectively the Parties' Systems), shall be "Year
2000 Compliant", meaning that the Parties' Systems:
(i)
are designed to be capable of operating prior to, during and after the calendar year
2000 AD, without error or reduction in performance relating to date data,
specifically including any error relating to date data which represents or references
different centuries or more than one century;
(ii) are able to accurately manage, manipulate and process date and date-related data
(including but not limited to calculating, comparing, sequencing and sorting)
ftom, into and between the calendar years 1999 and 2000 AD. and ftom, into and
between the twentieth and twenty-first centuries (including leap year calculations);
and
(iii) shall not abnormally terminate or provide invalid or incorrect results due to date
or date-related data, specifically including date data which represents or references
different centuries or more than one century.
(b) At either Party's request, the other shall, at no charge to the requester, demonstrate the
compliance techniques and test procedures to be followed by such party to confirm that
the its systems are Year 2000 Compliant in accordance with paragraph (a).
(c)
Either Party shall cause all subcontractors to comply with paragraph (a) with respect to
any component of its Systems to be provided by such subcontractors.
(d) Each Party represents and warrants that the meeting of its obligations under this
Agreement shall not be interrupted due to the failure of those systems which support the
operation of its business to be Year 2000 Compliant.
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Section 8.2 - AII'reement to Govern
If there is any inconsistency between this Agreement and any Schedule to this Agreement,
this Agreement shall govern.
Section 8.3 - Ownershin of T_h-..olo2V
The Client acknowledges and agrees that in providing the Services, OCW A may utilize
certain technology developed by or for OCW A, whether existing now or in the future, including
but not limited to technology such as WMMS, Outpost 5 and POC (the "Technology"). The
Client further agrees that the use of the Technology at the Facility does not in any way give the
Client any ownership rights in or Intellectual Property Rights to, the Technology.
Section 8.4 - HeadinllS
The division of this Agreement into Articles, Sections and Paragraphs and the insertion of
headings are for convenience of reference only and will not affect the construction or interpre-
tation of this Agreement.
Section 8.5 - Entire A2reement
This Agreement constitutes the entire agreement between the Client and OCW A with
respect to the subject matter hereof and cancels and supersedes any prior understandings and
agreements between the Client and OCW A with respect thereto except for the provisions of any
Existing Agreements that remain in effect in accordance with Section 6.1 of this Agreement.
There are no representations, warranties, terms, conditions, undertakings or collateral agree-
ments, express, implied or statutory, between the parties other than as expressly set forth in this
Agreement and in the provisions of the Existing Agreements which remain in effect in
accordance with Paragraphs 6.l(b) and (c) of this Agreement.
Section 8.6 - Pro,posal not Part of A2reement
OCW A's proposal to the Client to operate the Facility shall not form part of this
Agreement.
Section 8.7 - Amendments and Waivers
No amendment to this Agreement will be valid or binding unless it is in writing and duly
executed by both of the parties hereto. No waiver of any breach of any provision of this
Agreement will be effective or binding unless it is in writing and signed by the party purporting
to give such waiver and, unless otherwise provided, will be limited to the specific breach waived.
Section 8.8 - Successors and Á!lIIiIJllII
This Agreement shall operate to the benefit of and be binding upon, the parties hereto and
their successors and assigns. This Agreement may be assigned in the discretion of either party.
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Section 8.9 - Survival
All representations, warranties and indemnities given by each of the parties, shall survive
indefinitely the termination of this Agreement.
Section 8.10 - Severabilitv
If any covenant, obligation or provision hereof or the application thereof to any person or
circumstance shall, to any extent be invalid or unenforceable, the remaining provisions or the
application of each provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall continue to be valid and enforceable.
Section 8.11 - Notices
Any notice, or other communication required or permitted to be given hereunder by either
party to this Agreement shall be in writing and shall be delivered in person, transmitted by fax or
sent by registered mail, addressed as follows:
(i) if to the Client:
Municipality of Kincardine
707 Queen Street
Kincardine, Ontario
N2Z lZO
Telephone:
Fax:
Attention:
(519) 396-3468
(519) 396-8288
Clerk
(ii) if to OCW A:
Ontario Clean Water Agency
3508 Wonderland Road South
London, Ontario
N6L IA7
Telephone:
Fax:
Attention:
(519) 652-7027
(519) 652-7020
Vice President,
Western/Central Area
(b) If delivered in person or transmitted by fax, any such notice or other communication shall
be deemed to have been given and received on the day on which it was delivered or
transmitted (or, if such day is not a Business Day, on the next following Business Day).
(c)
If mailed, any such notice or other communication shall be deemed to have been given
and received on the third Business Day following the date of mailing; provide, however,
that if at the time of mailing or within three Business Days afterwards a labour dispute or
other event occurs, which might reasonably be expected to disrupt the delivery of
documents by mail, any notice or other communication hereunder shall be delivered ortransmitted by fax as provided in this Section 8.11.
(d) A party to this Agreement may change its address for the purpose of this Section by
giving the other party notice of such change of address in the manner provided in this
Section.
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Section 8.12 - Countemarts
This Agreement may be executed in counterparts, each of which shall constitute an
original and all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF the parties have duly executed this Agreement.
ONTARIO CLEAN WATER AGENCY
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(Authorized Signatory)
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Date of Signing
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(Authorized Signatory)
THE CORPORATION OF
THE MUNICIPALITY OF KINCARDINE,
lJet- JfJ ",,000
Date of Signing
¿~,_L~'L-
(Authorized Signing Officer)
By:
JJe::.;)o ';¡'OOD
Date of Signing
By:
Scott Point Water A~ment - 00/12/08
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SCHEDULE A
THE FACILITY
·
Scott's Point Water Snpply System
Part 1. Description of the Facility
For the purposes of this agreement, the Facility is comprised of the following:
One well pumping station including chemical addition facilities; a water treatment plant
complete with chemical addition, rapid sand filters, treated water storage, high lift pumping, and
filter backwash treatment and disposal; a water distribution system including necessary valves
and blow oft's.
Part 2. Street Address of the Facility
The street address of the Facility is as follows:
well- Part Lot 23, Plan 790, Scott's Point, Township of Bruce
plant - Part I, Plan 3R74, Scott's Point, Township of Bruce
· Part 3. Diagram of Facility
- insert a Process Flow Diagram here
·
Scott Point Water Agreement - 00/12108
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SCHEDULE B
DEFINITIONS
· In this Agreement, the following terms are defined below or in the section in which they first
appear:
"Actual Charges" is defined in Section 4.4 of this Agreement.
"Agreement" means this agreement together with Schedules A, B , C, D and E attached hereto
and all amendments made hereto by written agreement between OCW A and the Client.
"Applicable Laws" is to be broadly interpreted and means, with respect to any person, property,
transaction, event or other matter dealt with in this Agreement, any and all statutes, by-laws,
regulations, enactments, ordinances, rules, permits, consents, approvals, certificates of approval,
licences, judgments, orders, judicial decisions, common-law rules, decrees, injunctions,
agreements, authorizations, regulations, policies, guidelines, directives, objectives, whether
federal, provincial or municipal including, but not limited to all laws relating to occupational
health and safety matters, fire prevention and protection, health protection and promotion, land
use planning, environment, Building Code, or workers' compensation matters.
·
"Authorizations" means each of the sewer use and water by-laws, licences, certificates of
approval, permits, consents and other authorizations required under any law, regulation, by-law
or government policy in order to operate the Facility ûom time to time.
"Authorized Representative" is defined in Section 2.6 of this Agreement.
"Business Day" means a day other than a Saturday, Sunday or statutory holiday in Ontario.
"Capital Expenditnres" means the charges for all capital items in relation to the Facility,
including new or replacement equipment, any overhaul or rebuild of equipment, any non-routine
repair; maintenance, (and excluding routine maintenance); any alterations and any associated
installations, commissioning, including labour and preselection charges, together with OCW A's
service fee.
"Claim" means any claim, fine, penalty, liability, damages, loss and judgement, (including but
not limited to, costs and expenses incidental thereto) of any kind or nature whatsoever.
"Current Term" is defined in Paragraph 4.6{b) of this Agreement.
· "Estimate" is defined in Section 4.2 of this Agreement.
"Excluded Services" is defined in Section 2.3 of this Agreement.
"Existing Agreements" is defined in Paragraph 6.1 (a) of this Agreement.
"Facility" means the water supply treatment facility as defined in the Background to this
Agreement and further described in Schedule A to this Agreement.
Scott Point Water Agreement - 00/12/08
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"Indemnified Parties" is defined in Paragraph 3.3(a) of this Agreement.
"Initial Term" is defined in Section 4.1 of this Agreement.
"Insurance" is defined in Paragraph 2.9(a) and further described in Schedule E.
"InteUeetual Property Rights" means any copyright, trademark, patent, registered design,
design right, topography right, service mark, application to register any of the aforementioned
rights, trade secret, rights in unpatented know-how, right of confidence and any other intellectual
or industrial property rights of any nature whatsoever in any part of the world.
"Management Fee" is defined in Paragraph 4.6(a) of this Agreement.
"Outpost S" means a remote monitoring and control system designed and constructed by OCW A
and its consultants for the purpose of monitoring and controlling processes at water and
wastewater treatment facilities and their related parts.
"Parties" is defined in the Recitals.
"Parties' Systems" is defined in Paragraph 8.1(8) of this Agreement.
"PDC" or "Process Data CoUection" means technology that allows process data to be entered
into a format that can be viewed, manipulated and retrieved in the form of customized reports.
"Renewal Term" is defined in Paragraph 6.2(a) of this Agreement.
"Services" is defined in Section 2.1 and further described in Schedule B to this Agreement.
"Technology" is defined in Section 8.2 of this Agreement.
"Termination for Cause" is defined in Paragraph 6.2(b) of this Agreement.
"UncontroUable Circumstance" is defined in Paragraph 2.2(c) of this Agreement.
"Unexpected Expenses" is defined in Section 4.7 of this Agreement.
"WMMS" or "Work Management Maintenance System" means a computer program used to
determine a program of preventive maintenance activities for equipment in a facility based on a
risk analysis that considers factors such as equipment life expectancy, present value and
replacement cost.
"Year 2000 Compliant" is defined in Section 8.1 of this Agreement.
Scott Point Water Agreement - 00/12108
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SCHEDULE C
THE SERVICES
Subject to the provisions of this Agreement, the Services are those services set out in this
Schedule.
1. OoentinrDutid
Specifically, OCW A will perform regularly scheduled inspections and carry out associated
operational duties at the Facility, including all related equipment, bnildings and property to
ensure that the Facility is operating effectively. Specifically,OCW A will:
Water Treatment Plant
inspect process control equipment to ensure proper operation of chlorinators, pumps, and
chemical feeders;
check station/plant to ensure that everything is in order (also taking routine readings);
operate pump controls and valve controls for pumping of all process streams;
load chemicals and water in a liquid feed tank; and
add sodium hypochlorite to feed tanks and check chlorine residual.
Water Distribution
open, exercise and flush water blow-offs annually, make repairs and paint where
necessary and winterize each fall; and
inspect distribution system, visually for major leaks, exercise main distribution shut-off
valves and collect samples and monitor chlorine residual.
2. Day-to-Dav Mainh!nance
OCW A will provide routine maintenance of the Facility as would a reasonable operator.
Specifically, OCW A will:
perform routine maintenance duties to equipment by following the preventive measures
procedures; by checking machinery and electrical equipment when required and
overhauling of equipment;
maintain an inventory on all equipment and tools; and
ensure the security of the project by locking doors and gates.
3.
Canital Imorovemenú
OCW A, acting as a reasonable operator, will record information on the ftequency of
equipment breakdown and repair costs to determine replacement needs. Parts of the
Facility requiring upgrading or improvement will be identified and brought to the
attention of the Client in accordance with Sections 4.2 or 4.7 of this Agreement.
Scott Point Water Agreement - 00/12/08
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4.
Ontimi.....tion and ComnliRDce of Ooeration
·
OCW A will routinely analyze, investigate and, where appropriate, implement measures to
improve the effectiveness and efficiency of the Facility.
OCW A, acting reasonably, is responsible for ensuring an efficient operation of the
process and keeping records on a daily basis by:
Water Treatment and Distribntion
·
recording and analyzing water flow, chemicals used, cWorine residuals, turbidity;
checking chemical feed pumps, and performing routine calculations and evaluations and
determining operational adjustment requirements;
calculating, recording and analyzing daily and monthly water flows, pump running hours,
the amount of cWorine, fluoride, and alum used;
routinely conducting the following water tests: cWorine residual, water temperature,
colour, pH, turbidity; recording the results and making operational adjustments such as
increased chemical dosages;
completing the daily operating forms for statistics for computer input and output forms
and correcting the results of the output forms to ensure a proper monitoring of plant flows
and process;
collecting samples for heavy metals, trace organics, conducting routine analysis for bacti
and chemicals and ensuring that they are shipped to the proper labs for analysis;
ensuring that the daily operations comply with and fulfill the requirements of the
Certificate of Approval and other legal documents;
working with the Client to encourage a water conservation program such as water meters,
water efficient shower heads and toilets, wise use of water and promotions; and
repairing water leaks in distribution system.
s.
Rermlatorv Matters
OCW A will handle day-to-day regulatory requirements and contacts with regulatory
authorities in respect of operating issues concerning the Facility. OCW A will review any
inspection reports prepared by regulatory authorities that are provided to OCW A.
Subject to any approvals of the Municipality required by Section 4.2 of this Agreement,
OCW A will either correct deficiencies identified in such inspection reports or negotiate
changes to the reports with the regulatory authorities.
6.
Staffinll!
·
OCW A will staff the Facility with certified operators and other trained staff as required
by regulation under the OnJario Water Resources Act.
All OCW A staff at the Facility will be trained for the normal process operation and
maintenance of the Facility and will also received training on how to deal with emergency
situations should they arise. Staff will continue to receive training on an ongoing basis.
OCW A staff will be available to provide 24 hour coverage at the Facility in the event of
emergencies.
Scott Point Water Agreement - 00/12108
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7.
Emel'2encv Situations and Safety
OCW A will ensure that the Facility has a contingency plan in place to deal with
non-routine operational situations and emergency situations such as spills, by-passes,
overflows, hydro interruptions and equipment failure.
Scott Point Water Agreement - 00/12108
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SCHEDULE D
EXCLUDED SERVICES
The following services will not be provided by OCW A and are considered to be
"Excluded Services" for the purposes of this Agreement:
thawing water services;
installation and/or inspection of new water services from the property line to the building;
snow removal at plant, pumping stations and around hydrants;
foam swabbing and pigging watermains;
cost for non-routine sampling and lab analysis;
reading residential water meters;
grass cutting
Scott Point Water Agreement - 00/12/08
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SrHEDULE E
INSURANCE
A summary of the insurance coverage that ocw A will arrange for in respect of the Facility is
described below:
Pronertv Insurance
Perils:
Limits:
"All Risks" including earthquake and flood. Subject to policy
exclusions.
- $2,398,500,000 combined limit anyone loss, casualty, or disaster
- $2,398,500,000 annual aggregate offlood claims
- $2,398,500,000 annual aggregate of earthquake claims
- Replacement Value (Subject to Annual Reports)
- $25,000,000 for extra expenses above and beyond regular costs
associated with running the operation
- Extra expenses associated with shutting down the business for up to
six weeks on interruption by Civil Authority
Deductibles: All Perils - $2,500 except earthquake and flood
Earthquake - the greater 0[$100,000 or 3%;
Flood - $25,000
Property
Insured:
Where the Client's property is repaired or replaced the Client will pay the
deductible. Where OCW A's property is repaired or replaced, OCW A will
pay the deductible. In cases where both the Client's and OCW A's property
is repaired or replaced, the deductible will be paid by both the Client and
OCW A pro rata in accordance with the total loss.
All reported properties including buildings and equipment situated within
1,000 feet of the premises. Includes pumping stations, excludes
underground sewer and water system.
Boiler and Marhinerv Insurance
Coverage: Insures against loss or dAmAge arising nom an accident to scheduled
object in use or connected ready for use.
Objects:
Accident:
Limit:
Boilers, Pressure Vessels (Excess of l5PSl) Piping.
Sudden and accidental breakdown of an object which causes it physical
dAmAge, requiring its repair or replacement.
Subject to policy exclusions.
$10,000,000 per loss.
Scott Point Water Agreement - 00/12/08
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Deductibles: $2,500.
·
Where the Client's property is repaired or replaced the Client will pay the
deductible. Where OCWA's property is repaired or replaced, OCWA will
pay the deductible. In cases where both the Client's and OCW A's property
is repaired or replaced, the deductible will be paid by both the Client and
OCW A pro rata in accordance with the total loss.
Automobile Insurance
Coverage: Automobile Liability.
Limit: $2,000,000
Accident Benefits per Ontario Statutes.
Coverage: Collision
Deductible: $250
Coverage: Comprehensive
Deductible: $100
Deductible: The deductible will be paid by OCW A.
·
Comnrehensive General Liabilitv TnMurance
Coverage: Third party liability including legal fees, for property damage and/or
bodily injury as caused by negligence arising out of all operations of the
insured.
Limit: $20,000,000 per occurrence.
Deductible: $2,500
Where OCW A is negligent the deductible will be paid by OCW A. Where
the Client is negligent, the deductible will be paid by the Client. In cases
where both OCW A and the Client are negligent the deductible will be
divided equally.
·
Pollution Liabilitv Insurance
Coverage: Pollution legal liability covering third party property damage and
bodily irÿury and clean up costs for pollution conditions emanating
from the Facilities, with a coverage limit ofSlO,Ooo,OOO.oo per
claim or occurrence and aggregate. Coverage provides for on-site
clean up of the Facilities.
Scott Point Water Agreement - 00/12/08
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Limit:
$10,000,000 per loss on a Claims Made basis with automatic, extended
reporting periods. $10,000,000 aggregate.
Deductible: $50,000.
.
Where OCW A is negligent the deductible will be paid by OCW A. Where
the Client is negligent, the deductible will be paid by the Client. In cases
where both OCW A and the Client are negligent the deductible will be
divided equally.
Where neither the Client nor OCW A is negligent the deductible will be
paid as follows:
Where the Client's property is repaired or replaced the Client will pay the
deductible. Where OCW A's property is repaired or replaced, OCW A will
pay the deductible. In cases where the Client's and OCW A's and/or a third
party's property is repaired or replaced, the deductible will be paid by both
the Client and OCW A pro rata in accordance with the total loss
.
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Scott Point Water Agreanent - 00/12108