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HomeMy WebLinkAboutTWP 98 023 Agree - OCWA ~- j ,,-\ ~ · · · · - I - . . THE CORPORATION~OF THE TOWNSHIP OF KINCARDINE BY-LAW NO. 98-23 A By-Law authorizing the Corporation of THE TOWNSHIP OF KINCARDINE to enter into an Agreement in the form annexed as Schedule 'A' with the Ontario Clean Water Agency ('OCWA') with respect to the operation and maintenance of the wastewater facilities located in the Township of Kincardine. WHEREAS under Subsection 10(2), Section 11 and Subsection 63(3) of the Ontario Water Resources Act, R.S.O., 1990, Chapter 0.40, as amended, OCWA may enter into agreements for the provision of water service or sewage service and the Council of a municipality may, by By-Law, authorize the municipality to enter into an agreement with OCWA for the provision of water service or sewage service to the municipality. AND WHEREAS the Municipality wishes to enter into an Agreement with OCWA providing for the operation and maintenance of the wastewater facilities located in the Township of Kincardine, which are owned by the Municipality. NOW, THEREFORE, THE COUNCIL OF THE CORPORATION OF THE TOWNSHIP OF KINCARDINE ENACTS AS FOLLOWS: 1. The Municipality does hereby authorize an Agreement, in the form annexed hereto as Schedule 'A' (the 'Agreement'), with OCWA for the operation and maintenance by OCWA of the Works owned by the Municipality as described in Schedule 'A' annexed to the Agreement; 2 . The Reeve and the Clerk-Treasurer be and they are hereby authorized to execute the Agreement and any other documents and agreements necessary or desirable to carry out the intention of the Municipality and OCWA with respect to the operation and maintenance of the Works by OCWA. READ A FIRST AND SECOND TIME THIS 4TH DAY OF AUGUST, 1998. e>L~ RÉEVE P ~,~u~,;¿ C RK-TREAS READ A THIRD TIME AND FINALLY PASSED THIS 4TH DAY OF AUGUST, 1998. ¿~ ~d"~~ C RK-TREAS -. . -'.. -~¥_- W ~ _ " . . . SEal ~- . . - - .- - - . - -0 - - ~ .~ ":-";';",:,-'" ,,', .. "0 "c-- '. - ........ - . . ~.. " ~ . . July 31, 1998 ~ .. SCHEDULE A The F acilitv · Part 1. Description of the 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. · · .. .. t . x . . , . . July 31, 1998 SCHEDULE B The Services For the purposes of this Agreement, the following services shall constitute the services to be provided by oew A and are collectively referred to herein as "the Services" (Note: The '0 following list is as complete as possible but may not be exhaustive): 1. Oueratinl! Duties oew 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, oew A will: Wastewater Collection yearly, remove maintenancehole covers and inspect maintenanceholes 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-Dav Maintenance oew A will provide day-to-day maintenance of the Facility in accordance with industry standards and equipment manufacturer's instructions. Specifically, oew A will: carry out a routine lubrication program including greasing and oiling as specified in the lubrication schedule; perform 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. Cauital Imurovements oew A will record information on the trequency 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 section 4.2 of this Agreement. .' . ~, . ., . . , , 4. . . July 31, 1998 -2- Outimization and Comuliance of Oueration oew A will regularly analyze, investigate and implement measures to improve the effectiveness and efficiency of the Facility. oew A is responsible for ensuring an efficient operation of the process and keeping records on a daily basis by: Wastewater Collection recording and analyzing wastewater flow, and electricity used; calculating, recording, and analyzing the amount of 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 chernical 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. 5. Re¡rnlatorv Matters oew A will handle day-to-day regulatory requirements and contacts with regulatory authorities in respect of operating issues concerning the Facility. oew A will review any inspection reports prepared by regulatory authorities that are provided to oew A. Subject to any approvals of the Municipality required by section 4.2 of this Agreement, oew A will either correct deficiencies identified in such inspection reports or negotiate changes to the reports with the regulatory authorities. 6. Staffinl! oew A will staff the Facility with certified operators and other trained staff as required by regulation under the Ontario Water Resources Act. All oew 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. oew A staff will be available to provide 24 hour coverage at the Facility in the event of emergencies. .. ? . ~, . .", · · · '",," . . July 31, 1998 - 3 - 7. Emerl!encv Situations and Safety oew 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. One of oew A's safety officers will regularly inspect the Facility and provide ongoing safety training to staff. .'" " · · · " " . . , . . July 31, 1998 SCHEDULE C The following services will not be provided by oew A and are considered to be "Excluded Services" for the purposes of this Agreement: installation of new sewer services; cost for non routine sampling and lab analysis; ,-.! ^ .: ! ¡ ". " . . , . . July 31, 1998 SCHEDULE D INSURANCE A summary of the insurance coverage that oew A will arrange for in respect of the Facility is described below: ProuertvInsurance 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 $2,500 except earthquake and flood Earthquake - the greater of$lOO,OOO or 3%; Flood - $25,000 Property Insured: All reported properties including buildings and equipment situated within l,OOO feet of the prernises. Includes pumping stations, excludes underground sewer and water system. Boiler and Machinerv Insurance Coverage: Insures against loss or damage arising rrom 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 damage, requiring its repair or replacement. Subject to policy exclusions. Limit: $10,000,000 per loss. Deductible: $l,ooO. .... "/ ~ , -0/ s . . July 31, 1998 - 2- Automobile Insurance · Coverage: Automobile Liability. Limit: $2,000,000 Accident Benefits per Ontario Statutes. Coverage: Collision Deductible: $250 Coverage: Comprehensive Deductible: $lOO Comurehensive General Liabilitv 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: $lO,OOO,ooO per occurrence. · Deductible: $2,500 Pollution Liabilitv Insurance Coverage: Pollution Legal Liability including third party bodily injury and property damage. Remediation Expenses covering fIrst party clean up. Legal Defense Costs including first and third parties. Limit: $2,000,000 per loss on a Claims Made basis. Deductible: $50,000. · ". ,.,~ ./j . « /~ . . July 31, 1998 SERVICES AGREEMENT THIS AGREEMENT made as of the l I $t. I day of lJ-_tl, 199[:ì] . BETWEEN: . , ONTARlOCLEANWATERAGENCYfAGENCE ONTARIENNE DES EAUX. a corporation established under the eauital Investment Plan Act. 1993. chapter 23, Statutes of Ontario (referred in this Agreement as "oew A") AND THE CORPORATION OF THE TOWNSHIP OF KINCARDINE (referred in this Agreement as the "Client") BACKGROUND TO THIS AGREEMENT: (a) Her Majesty the Queen in Right of Ontario, as represented by the Minister of the Environment and its several predecessors in law (collectively referred to as the "Crown") entered into various agreements (the "Existing Agreements") with the Client concerning the operation and maintenance of a wastewater collection and pumping facility in the Community ofInverhuron (as further described in Schedule A to this Agreement) (the "Facility"). (b) oew A is the successor in title to the Crown as a result of the Capital Investment Plan Act. 1993. (c) The Client and oew A desire to enter into this Agreement for the purpose of further clarifying and delineating their respective rights and obligations with respect to the operation, payment and billing arrangements of and for the Facility. The Council of the Client on the!/!!... day of ./J +"~ , 199Jr passed By-Law No. qfj -.:I, ~ authorizing the Client to enter· this Agreement. I (d) 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 oew A agree as follows: ARTICLE 1 - INDEX TO DEFINITIONS Section 1.1 - Defmitions 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. v ---.~ '" J . . July 31, 1998 . . "Agreement" means this agreement together with Schedules A, B and e attached hereto and all amendments made hereto by written agreement between oew A and the Client. . "Authorizatious" 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 ITom time to time. "Authorized Representative" means each individual designated by either the Client or oew A pursuant to Section 2.5 to be authorized to represent it for the purposes 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 (excluding day-to-day maintenance); any alterations and any associated installation, commissioning and preselection costs, together with oew A's service fee for managing the project. "Claim" means any claim, fine, penalty, liability, damages, (including, but not limited to, damages for economic loss), 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 the Background to this Agreement. "Facility" means the wastewater collection and pumping facility as defined in the Background to this Agreement and further described in Schedule A to this Agreement. "Indemnified Parties" is defined in Paragraph 3.3(a) of this Agreement. "Initial Term" is defined in Section 4.l of this Agreement. "Management Fee" is defined in Paragraph 4.6(a) of this Agreement. , "Non-Terminating Party" is defined in Section 6.5 of this Agreement. "Services" is defined in Section 2.1 and further described in Schedule B to this Agreement. "Terminating Party" is defined in Section 6.5 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. ".. ~ i'. / . . . - . . July 31, 1998 ARTICLE 2 - RESPONSffiILITIES OF OCWA Section 2.1 - Retention of OCW A The Client retains oew A to provide management, operation, administration and maintenance services (as further described in Schedule "B" to this Agreement) in respect of the Facility (the "Services"). Section 2.2 - Performance of Services (a) oew 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 recommended by oew 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 improper or inadequate maintenance by oew A; (iii) the wastewater transmitted to the Facility for treatment does not meet the requirements of the Client's sewer use by-law; (iv) the quantity of wastewater transmitted to the Facility exceeds the Facility's design capacity. b) oew 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 other reason beyond the reasonable controlofOeW A; provided, however, that oew 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 oew 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 control of oew A, including but not limited to, 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"). Section 2.3 - Excluded Services For greater certainty, the services set out in Schedule e to this Agreement are specifically excluded rrom the Services (the "Excluded Services"). If the Client subsequently requires oew A to provide the Excluded Services, the Excluded Services may be provided at additional cost to the Client. v _...~ .. , ) . . . , . . July 31, 1998 Section 2.4 - OCW A as Indeuendent Contractor In performing the Services, oew A shall be acting as an independent contractor and only to the extent and for the specific purposes expressly set forth herein. Neither oew 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 2.5 - Authorized Reuresentatives Each of oew 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 2.6 - Reuortinl! oew A shall provide the following reports to the Client: (a) a facility performance report, within forty-five Business Days of the completion of each calendar quarter or such other period as the Client and oew 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, and safety activities and any special studies. Section 2.7 - Indemnification of the Client oew A shall exonerate, indemnify and hold harmless the Client, its officers, employees and agents rrom and against any and all Claims which may be suffered or incurred by, accrue against or be charged to or recoverable ITom the Client that are caused by oew A's negligence or wilful misconduct when performing the Services. The Client shall be deemed to hold the provisions of this Section 2.7 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 2.8 - Insurance (a) OeWA shall arrange for insurance coverage of the Facility as described in Schedule D to this Agreement and the Client shall be an additional insured under such coverage. If there is a significant change in the insurance coverage described in Schedule D, 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 oew A shall be an additional insured under such insurance. ~ .,., ¡:; . , ~ . July 31, 1998 ( c) The Client shall be responsible for securing its own insurance for any operations with which it is involved that are not the subject of this Agreement as it will have no recourse under oew A's policies of insurance for any such operations. · ARTICLE 3 - RESPONSIBILITIES OF THE CLIENT Section 3.1 - Reuresentations and Warranties of the Client The Client represents and warrants to oew 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 (as hereinafter defined) and any other costs that oew 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 rrom the Ontario Municipal Board, and each of the Authorizations are in good standing. · (c) The Client has provided oew 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. Section 3.2 - Covenants of the Client The Client hereby covenants for the benefit of oew A: (a) The Client agrees to promptly provide oeWA with any information relating to the Facility which could have a bearing on the provision of Services by oew A. (b) The Client shall repair, maintain and keep in a good working state in accordance with good engineering practice, all wastewater works that belong to or are under the control of the Client and that collect and transmit wastewater. · ,.. (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, indemnify and hold harmless oew 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 -~.. ?' " . . . . t . . July 31, 1998 Parties") ûom and against any and all Claims which may be suffered or incurred by, accrue against, or be charged to or recoverable ûom anyone or more of the Indemnified Parties that, in any way, either arise ûom or are connected with the operation of this Agreement. (b) oew A shall be deemed to hold the provision of this Section 3 that are for the benefit of oew A's directors, officers, employees and agents and the other Indenmified Parties as defined above, in trust for all such Indenmified Parties as third party beneficiaries under this Agreement. (c) Notwithstanding the other provisions of this Section 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 OeWA 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 oew 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 Al!reement This Agreement shall begin on January 1, 1999 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, OeWA 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 oew A no later than December 1st whether the estimate is approved (the approved estimate is referred to as the "Estimate"). The Estimate, once approved by the Client, shall be oew A's authorization to incur the expenditures in the Estimate. The Estimate for the first year of the Initial Term is $6,900. Section 4.3 - Payment of the Estimate The Client shall pay oew 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 $575.00. The first payment shall be due and payable on January l, 1999. Payment shall be made by the Client by pre-authorized debit rrom an account designated by the Client. Section 4.4 - Reconciliation of the Estimate and Actual Charl!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 ~ .. i', . ... . . July 31, 1998 days of oew A making the determination. If the Actual Charges exceed the Estimate paid by the Client, the Client shall pay oew A the difference within thirty days of oew A notifying the Client in writing of the determination. . Section 4.5 - Other Charl!es . , The Estimate, as reconciled with the Actual Charges, includes all charges associated with providing the Services, except for the following: (a) oew 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 OeWA a fixed annual management fee of$800 (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 oew A. If the Client and oew A cannot reach an agreement on the Management Fee for any renewal term within six months of the beginning of the last year ofthe 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 l57/93 under the Ontario Water Resources Act. Section 4.7 - Unexuected Exuenses (a) "Unexpected Expenses" means unanticipated expenditures that oew A incurs in order to address equipment failure, acts of third parties, or other circumstances beyond oew 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. In the event that oew 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 oew A will provide the Client with a report detailing the reasons the Unexpected Expenses were incurred and the Client shall pay oew A for the Unexpected Expenses immediately upon receipt of an invoice ITom oew A. (b) ..,. .,.. ~ ~ ""!"^" '1'"!~ . . July 31, 1998 , Section 4.8 - Interest on Late Payments · · · (a) "Prime Rate" means the rate of interest expressed as an annual percentage rate announced rrom time to time by the Royal Bank as its reference rate then in effect for determining interest rates on commercial demand loans in Canadian dollars made in Canada whether or not any such loans are made by such bank on the day of determination. (b) If the Client's monthly payment of the Estimate is not available in its designated bank account on the agreed to date of payment, OCW A will notifY the Client that the funds were not available. On the next Business Day, oew A will again attempt to withdraw the monthly payment. If funds are not available when the second attempt to withdraw funds is made, oew A will notifY the Client that the payment is late, and in addition to paying the monthly payment owing to oew A, the Client shall pay OCW A interest at the Prime Rate plus 3%. Interest shall accrue on a daily basis ITom the day after the second attempt to withdraw funds is made. (c) All late payments, other than those described in Paragraph 4.8(b) above, shall bear interest at the Prime Rate plus 3%. Interest shall accrue on a daily basis ITom the date after payment is due. Section 4.9 - Partial Payment of Disuuted Invoices If the Client disputes any portion of an invoice, the Client shall nonetheless pay to oew A the undisputed portion of the invoice by the due date. If any additional amount is finally determined to be payable to oew A, the Client shall pay oew A the additional amount, plus interest as provided above in Paragraph 4.8( c) above, within ten days rrom the date of final determination. ARTICLE 5 - DISPUTE RESOLUTION Section 5.1 - Arbitration (a) If a dispute arises between the Client and oew A which cannot be resolved within a reasonable time, the issue shall be determined by a sole arbitrator appointed by mutual agreement between the Client and oew A. Failing agreement, the issue shall be determined by a panel of three arbitrators: one arbitrator shall be appointed by the Client and a second arbitrator shall be appointed by oew A. These two arbitrators shall appoint a third, who shall chair the arbitration. The determination of the sole arbitrator or the arbitration panel, as applicable, shall be final and binding upon OCW A and the Client and there shall be no appeal rrom the determination. (b) The arbitration shall be governed by the provisions of the Arbitrations Act. ARTICLE 6 - EXISTING AGREEMENTS AND TERMINATION Section 6.1 - Existinl! Al!Teements (a) Any Existing Agreement between the Client and oew A shall remain in effect, except to the extent it is inconsistent with this Agreement. .' ! 1 . . , .. . . July 31, 1998 (b) Notwithstanding any other provision of this Agreement, all fmancial obligations of the Client to oew A or predecessors of oew A under any Existing Agreement, including but not limited to the obligation of the Client to pay oew A any outstanding debt owed in respect of the Facility, shall remain in effect until such time (if applicable) that new fmancing arrangements have been entered into between the Client and oew A. Section 6.2 - Termination of Al!Teement (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. (b) During the Initial Term, this Agreement cannot be terminated by either the Client or oeWA unless: (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; and (iv) after the thirty days referred to in paragraph (iii) above has expired, the party complaining of the breach gives the other party six months written notice of termination. If either party disputes the existence of a breach or that the breach is material, the dispute may be referred to arbitration under Section 5.l of this Agreement. (c) After the Initial Term of this Agreement, either the Client or OeWA may terminate this Agreement as follows: (i) in accordance with Paragraph 4.6(b) of this Agreement; (ii) for any reason, upon twelve months prior written notice; or (iii) if there has been a material breach of the Agreement, in accordance with the procedure described in Paragraph 6.2(b) above. Section 6.3 - Final Settlement IfoeWA ceases to operate and maintain the Facility, there shall be a final settlement of all accounts with respect to the Actual Charge, the Management Fee and any other charges incurred by oew A and amounts owing by the Client under this Agreement, no later than ninety (90) days after oew A ceases to provide the Services. ," .; ~ . . July 31, 1998 Ã Section 6.4 - Earlv Termination . If either party terminates this Agreement (referred to in this Section as the "Terminating Party"): (i) prior to the end of the Initial Term and the other party (the "Non-Terminating Party") has not committed a material breach which has not been corrected as described in Paragraph 6.2(b) above; or (ii) in any renewal term and the Terminating Party does not give notice to the Non-Terminating Party as required by Paragraph 6.2( c) above and there has not been a material breach by the Non-Terminating Party which has not been corrected as described in Paragraph 6.2(b); then the Terminating Party shall be responsible for all costs incurred by the Non-Terminating Party as a result of such termination. ARTICLE 7 - GENERAL Section 7.1 - Al!reement to Govern If there is any inconsistency between this Agreement and any Schedule to this Agreement, this Agreement shall govern. . Section 7.2 - 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. Section 7.3 - Entire Al!reement This Agreement constitutes the entire agreement between the Client and oew 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.l of this Agreement. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, 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 Section 6.l of this Agreement. , Section 7.4 - 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. ,.. J,r . ... .. . . , . . July 31, 1998 Section 7.5 - Successors and Assims This Agreement shall enure to the benefit of and be binding upon, the parties hereto and their successors and assigns. Section 7.6 - Survival All representations, warranties and indemnities given by each of the parties, shall survive indefinitely the termination of this Agreement. Section 7.7 - 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 7.8 - 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) ifto the Client: Township of Kincardine P.O.Box l4 R.R. #5 Kincardine, Ontario N2Z 2X6 Clerk-Treasurer Telephone: Fax: (519) 396-8100 (5l9) 396-8432 Attention: (ii) if to OeWA: Ontario Clean Water oew A 3508 Wonderland Road South London, Ontario N6L lA7 Telephone: Fax: (5l9) 652-7027 (519) 652-7020 Attention: Vice President, Western 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, ifsuch 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 7.9. ,- . - " . . , . . July 31, 1998 (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 7.10 - Counteruarts 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 WlTNESS WHEREOF the parties have duly executed this Agreement. ONTARIO CLEAN WATER AGENCY ~I-¡,/fl> Date f Signing By: ¡í1; '1J~ Fausto Saponara (Authorized Signatory) vp, BusIness DeveiopmeOI . ""..--- -~ . ~ Date of Signing a~cJ (Authorized Signatory) '\-:::~~~- _.~~.~-~.~:~_~v- . " -. -- - ¥.;... .........--- :¿ - "- -..... LOUiSe1l'f~n ~ }oê: Vp, FiI'lallCe &~j;þallon /.{:~ ';j~ ~:.:;~~~¥ ¿<; By: THE CORPORATION OF THE TOWNSHIP OF KINCARDINE ~# Gordo l, Reeve - By: f Signing - // -. '- -" -- o. , 0 By: . - - .. . - 0 .--.-:':: .--' . o. ... .. ~,'~ ::.:. .-",-