2003-007 By-Law to authorize the execution of a sewer responsibility agreement between the Township of Oro-Medonte and Amercian Water Services Canada Corp.
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THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE
BY-LAW NO. 2003-007
BEING A BY-LAW TO AUTHORIZE THE EXECUTION OF A SEWER
RESPONSIBILITY AGREEMENT BETWEEN THE TOWNSHIP OF ORO-MEDONTE
AND AMERICAN WATER SERVICES CANADA CORP.
WHEREAS The Municipal Act, 5.0. 2001, c.25, Section 23 authorizes the Council of a
Municipality to enact a by-law for entering into an agreement with any person to
maintain and operate a sewage works;
AND WHEREAS Council of the Corporation of the Township of Oro-Medonte deems it
necessary to enter into a Sewer Responsibility Agreement with American Water Services
Canada Corp.;
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NOW THEREFORE the Council for The Corporation of the Township of Oro-Medonte
hereby enacts as follows:
1. THAT the Mayor and Clerk are hereby authorized to sign an agreement between
the Corporation of the Township of Oro-Medonte and American Water Services
Canada Corp., said agreement attached hereto as Schedule 'A' and forming part
of this by-law.
2. THAT this by-law comes into full force and effect upon final passing thereof.
BY-LAW READ A FIRST AND SECOND TIME THIS 5TH DAY OF FEBRUARY,
2003.
BY-LAW READ A THIRD AND FINAL TIME THIS 5th DAY OF Feb. 2003.
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THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE
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MAY,;. NEIL CRAIG
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CLERK, M RIL YN PE YCOOK
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THIS AGREEMENT made this~ day of Jar:1uary.
04/11/02-3
BETWEEN:
THE TOWNSHIP OF ORO MEDONTE
(herein called the "Township")
OF THE FIRST PART
- and -
AMERICAN WATER SERVICES CANADA CORP.
previously known as Azurix North America (Canada) Corp.
(herein called "AWS")
OF THE SECOND PART
WHEREAS AWS owns, operates and manages water and wastewater assets, offers
water-related services and develops and manages water resources worldwide;
AND WHEREAS AWS has certain property rights in certain lands described and
depicted in Schedule "A" hereto (the "Lands"), on which is or will be located sewage
conveyance facilities more fully described in Schedule "B" hereto (the "Sewers");
AND WHEREAS Horseshoe Resort Corporation ("Horseshoe") and other developers,
including specifically Laurel View Homes Inc. (collectively with Horseshoe, the "Developers")
own certain lands in close proximity to the Lands, on which Horseshoe has developed a resort,
including hotel, restaurant and condominium facilities (the "Development") and the Developers
intend to further develop a residential site entailing an adult lifestyle facility (the "Adult
Community");
AND WHEREAS AWS is currently providing sewage treatment to the Development and
the Developers require the service to be increased, as a result of the addition of the Adult
Community;
AND WHEREAS AWS and Horseshoe have entered, or will enter, into an agreement
(the "Contract") for the construction of, inter alia, an addition to the current sewage treatment
facility (the "Facility"), which addition shall include a trunk sewer extension to the Sewers (the
"Trunk Sewer Extension") and the operation, maintenance and repair of the Facility and
Sewers once completed;
AND WHEREAS the Township will only support the further development of the Adult
Community based on the construction and operation of the Sewers and the continued operation
of the Facility by AWS;
AND WHEREAS the Ministry has issued, and will from time to time issue, an
amendment to the Certificate of Approval for the Facility to incorporate the Sewers, a copy of
which is attached hereto as Schedule "C".
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AND WHEREAS the Developers have or will enter into contracts with certain persons for
the phased-in construction of the Community Sewers, as described in Schedule "8" hereto;
AND WHEREAS the Township will require, as a condition of the subdivision approval
the transfer of ownership of the, Community Sewers from the Developers to AWS on a phased-
in process once the Community Sewers are constructed, commissioned and the maintenance
period has expired and the Township has assumed the Sewers;
AND WHEREAS depending upon the development of the area around the Adult
Community, the Town Sewers, as described in Schedule "8" hereto may be constructed to
provide sewage to such town residents;
AND WHEREAS the Township does not wish to construct, own or maintain the Town
Sewers once constructed and intends to transfer ownership of the Town Sewers to AWS on a
phased-in process once the Town Sewers have been constructed, commissioned and the
maintenance period has expired and the Township has assumed the use of the Sewers;
NOW THEREFORE for good and valuable consideration, the sufficiency and receipt of
which is hereby acknowledged, and the mutual covenants contained herein, the parties agree
as follows:
ARTICLE 1. DEFINITIONS AND INTERPRETATION
1.1 As used in this Agreement, in addition to those words and phrases already defined
herein, the following words and phrases mean:
a) "Adult Community" means the approximately 600 residential units to be built by
the Developers intended to be an adult lifestyle facility located east of Oro-
Medonte Third Line and south of Highland Drive, Oro-Medonte, Ontario;
b) "Arbitration Act" means the Arbitration Act, S.O. 1991, c.17, as amended or
replaced from time to time;
c) "AWS" means American Water Services Canada Corp, an Ontario corporation,
previously known as Azurix North America (Canada) Corp.;
d) "Certificate of Approval" means an approval issued under the authority of the
Ontario Water Resources Act, the Environmental Protection Act, the Ministry or
other any applicable provincial legislation relating to the operation or functioning
of the Facility and the Sewers, or a portion thereof, as it may be amended,
revised or reissued from time to time;
e)
"Certificate of Maintenance and Final Acceptance" means a certificate issued
by the Township upon the recommendation of the Township Engineer confirming
that the Sewers constructed by the Developer, in accordance with the terms of
the applicable subdivision agreement, have been satisfactorily completed and
maintained by the Developer during the two-year (2) maintenance period, and
issuance of the said certificate following a CCTV inspection and any remedial
works carried out at the developer's cost, shall constitute final acceptance and
assumption of the Sewers by the Township;
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f)
"Certificate of Substantial Completion and Acceptance" means a certificate
issued by the Township upon the recommendation of the Township Engineer
confirming that the Sewers to be installed by the Developer under the provisions
of the applicable subdivision agreement, have been substantially completed in
accordance with plans and specifications reviewed and accepted by the
Township Engineer. The issuance of a Certificate of Substantial Completion and
Acceptance shall not constitute an assumption of the Sewers by the Township;
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g) "Certified Cheque" means the certified cheque provided by AWS and issued in
favour of the Township to secure the operation, maintenance and management
of the Sewers in accordance with the terms and conditions of this Agreement;
h) "Community Sewers" has the meaning set out in Schedule "B" hereto;
i) "Contract" means that agreement to be executed between AWS and Horseshoe
for the construction of the Trunk Sewer Extension and the continued operation,
maintenance and repair of the Facility and Sewers;
j) "Condominium Act" means the Condominium Act 1998, S.O. 1998, c. 19, as
amended or replaced from time to time;
k) "Construction Lien Acf' means the Construction Lien Act, R.S.O. 1990, c.
C.30, as amended or replaced from time to time;
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I)
"Deficiency" means any breakdown or malfunction of the Sewers that would
cause them not to function and provide the service required by the residents of
the Adult Community, that would cause them not to comply with the requirements
of the Certificate of Approval and/or is a detriment to the Township and public
property, public health or the environment;
m) "Developers" means Horseshoe and such other developers who are
responsible from time to time for the development of the Adult Community;
n) "Development" means the resort, including hotel, restaurant, time-share and
condominium facilities as may be developed by Horseshoe and the Developers
from time to time;
0) "Director" means the director appointed by the Minister of Environment under
the Environmental Protection Act or the Ontario Water Resources Act;
p)
"End Users" shall mean those residents of the Adult Community or such other
residents of the Township who will receive and pay for sewage services from the
operation of the Facility and the Community Sewers between such residents or
the Town Sewers, respectively, pursuant to a service agreement with the
Developer or AWS, respectively;
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q) "Environmental Protection Acf' means the Environmental Protection Act,
R.S.O. 1990, c. E.19, as amended or replaced from time to time;
r) "Facility" means the existing sewage treatment facility owned by AWS and
servicing the Development;
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s) "Fund" means the replacement and reserve fund to be established by AWS, into
which the Fund Allocation shall be deposited for the purpose of financing
Replacement and Reserve Costs;
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t)
"Fund Allocation" means that portion of Revenue allocated by AWS to be
deposited into the Fund, as defined in Article 7.1 herein, in any given year, based
on the Replacement and Reserve Costs;
u) "Horseshoe" means Horseshoe Resort Corporation, an Ontario corporation,
which owns the Development;
v) "Lands" means the real property owned by AWS, as described and depicted in
Schedule "A" hereto;
w) "Ministry" means the Ministry of the Environment for the Province of Ontario or
any other agency designated by either the Province of Ontario or the Ministry of
the Environment to act on its behalf;
x) "Municipal Act" means the Municipal Act, R.S.O. 1990, c. M.45, as amended as
it existed on December 31,2002;
y)
"Municipal Act, 2001" means the Municipal Act, 2001, S.O. 2001, c. 25, which
comes into force on January 1, 2003, and any regulations to be enacted in
respect thereof;
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z) "Municipal Responsibility Agreement" means the agreement between the
Township and AWS dated September 1,2001 providing for the responsibilities of
each of the Township and AWS in respect of the Facility;
aa) "Ontario Water Resources Act' means the Ontario Water Resources Act,
R.S.O. 1990, c. 0.40, as amended or replaced from time to time;
bb) "Planning Act" means the Planning Act, R.S.O. 1990, c. P.13, as amended or
replaced from time to time;
cc) "Replacement Costs" means the estimated costs for replacing the Sewers, ,
including the associated inspection and maintenance of the Sewers and any
mechanical or electrical elements of the pumping station that may require repair
in any given year, as set out in Schedule "0" hereto;
dd)
"Revenue" shall mean the monies collected by Horseshoe and/or AWS (or such
other party as AWS may designate from time to time) from the End Users for the
provision of sewage services through the operation of the Facility and the Sewers
by AWS, which shall ultimately be paid to AWS by Horseshoe and/or the End
Users pursuant to the terms of the Contract or those contracts that AWS shall
have directly with the End Users;
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ee) "Sewers" means the original trunk sewer, the Trunk Sewer Extension, the
Community Sewers and the Town Sewers, all as more particularly described in
Schedule "8" hereto;
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ii)
"Town Sewers" has the meaning set out in Schedule "S" hereto;
"Township" means the Township of Oro-Medonte;
"Trunk Sewer Extension" means the trunk sewer extension to the Sewers to be
built by AWS, as more particularly defined in Schedule "S" hereto; and
"Trustee" means the treasurer appointed by the Township, from time to time, to
manage the financial matters of the Township.
1.2 The division of this Agreement into articles and sections is for convenience of reference
only and shall not affect the interpretation or construction of this Agreement.
1.3 The following schedules, which are attached hereto and may be amended from time to
time to incorporate any additions or modifications to the description of the Sewers as they are
built and the Certificate of Approval or the Fund to accommodate the modifications to the
Sewers, together with all provisions therein, are hereby made a part of this Agreement as fully
and for all purposes as would be the case if they were set out in the text of this Agreement as
covenants and agreements:
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Schedule "A" - Legal description of the Lands
Schedule "S" - Description of the Sewers
Schedule "C" - Certificate of Approval for the Facility and the Sewers
Schedule "0" - Fund
1 .4 The masculine gender shall include the feminine and neuter genders, and vice versa,
the word "person" shall include firms and corporations and the singular number shall include the
plural, and vice versa.
ARTICLE 2. REPRESENTATION AND WARRANTIES
2.1 AWS hereby represents and warrants as follows:
a) it is a corporation duly organized, validly existing and in good standing under the
laws of the Province of Ontario, with full legal right, power and authority to enter
into and perform its obligations under this Agreement;
b) it has duly authorized the execution and delivery of this Agreement and this
Agreement constitutes a legal, valid and binding obligation of AWS, enforceable
against it in accordance with its terms;
c)
it has or will acquire an easement to the golf course and the club house owned
by Horseshoe and located on the Development, for the purpose of accessing the
Facility and the Sewers; and
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d) it is either the legal and beneficial owner of the Lands or has acquired or will
acquire an easement or licence to the Lands owned by Horseshoe and an
easement or licence over the Township property, in which the Sewers are or may
be located.
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2.2 The Township hereby represents and warrants as follows:
a)
it is a municipal corporation duly organized, validly existing and in good standing
under the laws of the Province of Ontario, with full legal right, power and authority
to enter into and perform its obligations under this Agreement;
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b) it has duly authorized the execution and delivery of this Agreement and this
Agreement constitutes a legal, valid and binding obligation of the Township,
enforceable against it in accordance with its terms;
c) it has obtained all approval, authorization, order or consent of, or declaration,
registration or filing with, any governmental authority that is required for the valid
execution and delivery by the Township of this Agreement, including any
approval required pursuant to section 65 of the Ontario Municipal Board Act,
R.S.O. 1990, c. O. 28; and
d) it has or will enact any by-laws necessary pursuant to section 210.1 of the
Municipal Act necessary to give effect to this Agreement.
ARTICLE 3. DUTIES AND RESPONSIBILITIES OF AWS
3.1 AWS covenants and agrees that it shall:
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a)
construct the Trunk Sewer Extension according to current acceptable
engineering practices and operate, maintain, and if necessary, repair and/or
replace all or part of the Sewers after they are constructed in accordance with the
operating standards and the terms and conditions contained herein;
b) prepare, at its own cost, all plans, specifications, profiles, contours, and other
engineering material, drawings and data required in the opinion of the Township,
acting reasonably, in respect of the construction of the Trunk Sewer Extension
and shall submit such plans, specifications, profiles, contours and other
engineering material, drawings and data to the Township for approval;
c) obtain, at its own cost, any and all approvals and licenses required in connection
with the Trunk Sewer Extension and its operation;
d) obtain the financial assurance for the Sewers in the form of the Certified
Cheque, which amount shall be equal to Fifty Thousand dollars ($50,000);
e)
not commence any work on the construction of the Trunk Sewer Extension nor
operate the Sewers until it has received a Certificate of Approval in respect of
such construction or operation and the Township's approval to commence the
operation, provided that the Township shall act reasonably and promptly in
providing such approval;
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f) prepare a contingency plan for sewage haulage in the event of a Deficiency that
results in a type of failure of the Sewers that requires haulage of sewage;
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g) prepare and provide to the Township, a copy of all reports, including any plans or
specifications contained therein, in respect of the operation and maintenance of
the Sewers or required to be provided to the Ministry, from time to time; and
h)
provide to the Township, a copy of any and all documents submitted to the
Ministry including, but not limited to, an operation and maintenance manual and a
sludge disposal program, and a copy of any and all field orders, work orders or
compliance documents issued by the Ministry, in respect of the operation and
maintenance of the Sewers.
3.2 AWS acknowledges and agrees that the design and construction of the Trunk Sewer
Extension and the operating standards of the Sewers will be those upon which a Certificate of
Approval and any orders or other requirements imposed under the Environmental Protection Act
or the Ontario Water Resources Act are based, by the Ministry or together with such additional
requirements as the Township may reasonably impose pursuant to any authority within its
jurisdiction and responsibility. The parties agree that the Township may impose any of the
terms of this Agreement as conditions for the approval of any Certificate of Approval or other
approval issued by the Ministry or under the Planning Act or the Condominium Act and AWS
shall not object to or otherwise appeal the imposition of such terms as conditions to any such
approval or Certificate of Approval issued to AWS.
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3.3 AWS shall not add to, alter or extend the Sewers without advising and providing the
Township with a copy of any and all such additions, alterations or extensions. In the event AWS
makes any changes to the Sewers, AWS shall provide to the Township certified updated "as
built" plans. AWS shall obtain all approvals, permits and certificates required under applicable
law prior to effecting any such addition, alteration or extension.
3.4 AWS further acknowledges and agrees that all materials to be supplied hereunder with
respect to the Trunk Sewer Extension shall be in accordance with Ontario Provincial Standards
or appropriate design guidelines and if no materials are specified in any particular case, then the
same shall be of good quality and appropriate in design and construction for the Trunk Sewer
Extension, and shall be subject to the approval of the Township acting reasonably.
3.5 Nothing contained herein shall limit the obligation of AWS to continue to provide reports
to the Ministry in respect of the Sewers, and AWS shall be solely responsible for providing such
reports to the Ministry.
ARTICLE 4. DUTIES AND RESPONSIBILITIES OF THE TOWNSHIP
4.1 The Township covenants and agrees that it shall:
a)
set up a mechanism to advise any customers of the Sewers, who may
inadvertently call the Township regarding complaints or issues related to the
services provided by AWS that any such complaints or matters relating to the
service provided by AWS, should be directed to:Jeff Trudeau at 905-572-5905;
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b) review within fifteen (15) days of receipt all capital expenditure plans prepared
and provided by AWS in respect of the Sewers;
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c) ensure that AWS has the opportunity to inspect the Sewers at the time of
installation and the ability to confirm that the Sewers are all built in accordance
with prevailing standards;
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d)
transfer to AWS any and all warranties for the Sewers that the Township obtains
from those Developers who have constructed the Sewers and assist AWS where
necessary to enforce any such warranties;
e) use its best efforts within its jurisdiction, to enact a by-law allowing AWS and/or
Horseshoe to collect water and/or sewage fees from the Township residents,
which shall also provide an enforcement mechanism by which AWS can have
remedies for non-payment of such fee and shall assist where possible with
enforcement; and
f) assume responsibility for the operation of the Sewers in the event of an
Operating Default under the Municipal Responsibility Agreement in which case
the Township shall be entitled to call in and utilize the Certified Cheque and
monies from the Fund pursuant to Article 7 herein.
ARTICLE 5. THIRD PARTY ENGINEER
5.1 For the purposes of monitoring the Sewers and providing comments on and approval of
reports prepared by AWS, the Township may, in its sole discretion, retain an engineer (the
e "Township Engineer") to perform the following:
a) monitor the construction of the Trunk Sewer Extension by AWS and provide to
the Township a certificate that the construction of the Trunk Sewer Extension has
been completed in accordance with the Certificate of Approval;
b) monitor the operation of the Sewers on an annual basis to confirm compliance
with the provisions of the Certificate of Approval;
c) review any and all Rectification Plans (as defined below) proposed by AWS for
any Deficiency which may arise during the term of this Agreement in respect of
the condition or operation of the Sewers;
b) review and approve all requests for Replacement and Repair Costs exceeding
the threshold, as set out in section 7.5; and
d) review any and all capital expenditure plans in respect of the Sewers prepared by
AWS and submitted to the Township.
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5.2 AWS hereby covenants and agrees to reimburse the Township for the costs associated
with retaining the Township Engineer and performing the tasks herein, provided that such costs
shall not exceed Two Thousand dollars ($2,000.00) in any given year and further provided that
any amount not reimbursed to the Township for any given year up to the maximum amount,
shall not carryover to any subsequent years as a benefit or credit to the Township. Such
amount shall be reimbursed annually up to the agreed amount of Two Thousand dollars
($2,000.00).
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5.3 Each of the Township and AWS hereby acknowledges and agrees that the Township
Engineer acts solely for and in the discretion of the Township in performing his duties hereunder
and the Township Engineer shall not be required to report to or act for the benefit of AWS.
ARTICLE 6. OWNERSHIP, REPAIR, MAINTENANCE OR REPLACEMENT OF SEWERS
6.1 The parties acknowledge and agree that during construction of the Sewers, the
respective Developers are the owners of the Sewers for which they are responsible for
constructing. The Township shall ensure that it has entered into agreements with the
Developers, granting AWS a right to inspect and confirm that the Sewers have been constructed
in accordance with industry standards and providing AWS an opportunity to require the
Developers to rectify any deficiencies. The Township shall take all steps necessary to assist
AWS in exercising such rights and to enforce such rights if necessary.
6.2 The Township shall not issue a Certificate of Substantial Completion and Acceptance to
the Developers, until such time as AWS has approved the construction of the Sewers and their
readiness and acceptability for commission. The parties acknowledge and agree that the
commissioning and transfer of ownership of the Sewers shall occur on a piecemeal basis and
nothing herein shall require the transfer of ownership of all of the Sewers at the same time.
Upon the issuance of the Certificate of Maintenance and Final Acceptance, the Township shall
immediately transfer ownership of the Sewers to AWS. AWS shall not be liable for any loss,
damage or claims in respect of the Sewers prior to its ownership thereof.
6.3 In the event the Ministry determines that a Deficiency exists AWS shall promptly notify
the Township in writing (the "Deficiency Notice") of the particulars of such Deficiency, which
Deficiency Notice shall include any order issued by the Ministry to rectify the Deficiency or AWS
intended plan of action for rectifying the Deficiency if ordered to create one by the Ministry (the
"Rectification Plan"), including the minimum and maximum time period in which the
Rectification Plan shall be completed. AWS, at its own cost, shall obtain any and all approvals
required under statute or by the Ministry to rectify any such Deficiency and shall rectify such
Deficiency in accordance with the terms of the Rectification Plan and upon completion, shall
certify to the Township that all Deficiencies have been rectified in accordance with the
Rectification Plan. In the event AWS fails to rectify the Deficiency, the Township shall have the
right to remedy the Deficiency itself, and AWS shall reimburse the Township the cost of any
such repairs.
6.4 Notwithstanding any provision contained herein, the obligation of AWS to provide a
Deficiency Notice does not preclude any obligation it may have to report such Deficiency to the
Ministry or any other authority as required by law, and AWS shall report the occurrence of such
Deficiency as required by the Ministry or any other authority.
6.5 If AWS, the Ministry or the Township determines that the Deficiency is of a type that may
cause a material danger to human health, the environment or real property owned by the
Township, the Township may provide a copy of such Deficiency Notice to any public authority it
deems appropriate and necessary to advise to ensure adequate protection of the public,
environment or property from the effects of the Deficiency.
ARTICLE 7. REPLACEMENT AND RESERVE FUND
7.1 AWS and the Township shall be required, upon the assumption of the Community
Sewers by the Township and subsequent transfer to AWS and for the term of this Agreement
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thereafter, to establish and maintain the Fund for the purpose of financing the costs of
inspecting, maintaining, repairing and replacing the Sewers. The parties hereby acknowledge
and agree that AWS shall subsidize the Fund throughout the term of this Agreement with the
Fund Allocation. AWS hereby covenants and agrees to deposit any and all of the Fund
Allocation collected by Horseshoe and/or AWS from the End Users and received by AWS from
Horseshoe and/or the Developers into the Fund. The Fund shall include an annual capital
replacement amount, for purposes of Sewer replacement at the end of an anticipated fifty (50)
year life. The amount required to be held in the Fund shall be adjusted, as and when required,
to reflect the buildout rate of new Sewers. AWS shall ensure that the monies held in the Fund
shall be held in an interest bearing account, which interest shall be added to the Fund.
7.2 AWS shall be required to maintain a sufficient amount of monies in the Fund to pay for
the Replacement and Reserve Costs budgeted in any given year, as set out in Schedule "0"
hereto for the term of this Agreement. The parties acknowledge and agree that the Fund
Allocation deposited into the Fund in any given year may exceed or be less than the amount
required for the Replacement and Reserve Costs for such year. The parties further
acknowledge and agree that any surplus of the Fund Allocation deposited into the Fund and not
expended in any given year, shall remain in the Fund and be carried forward to be applied to the
Replacement and Reserve Costs for the following years. The parties acknowledge and agree
that under no circumstance shall AWS be required to pay into the Fund monies other than the
Fund Allocation.
7.3 AWS shall annually update the Replacement and Reserve Costs (the "updated
estimate") and provide the Township Engineer with a copy of the updated estimate for its
review and approval. In determining the updated estimate, AWS shall at a minimum take into
consideration the actual cost paid to perform inspections and maintenance of the Sewers from
the preceding year, the costs of any repairs or replacements made to the Sewers, the
decreased lifespan of any of the Sewers, which may require early replacement, and any
fluctuation in the market for the costs of maintaining the Sewers. AWS hereby covenants and
agrees, in the case of those End Users who receive sewage service from the Community
Sewers, to ensure that it the costs of services charged to such End Users, are sufficient to
subsidize any increase in the Replacement and Reserve Costs resulting from the updated
estimate. In the case of those End Users who receive sewage service from the Town Sewers,
AWS shall advise the Township and the End Users at least thirty (30) days in advance, of the
need and reason to increase the cost of such services to such End Users.
7.4 Each of the parties acknowledges and agrees that the amount required to be reserved in
the Fund shall be adjusted from time to time to the extent that such reserve fluctuates up or
down as a result of increased usage of the pumping station resulting from the number of Sewers
constructed and commissioned for operation by AWS or others, changing costs, the updated
estimate or other circumstances.
7.5 AWS is hereby authorized to withdraw monies from the Fund as required to pay for the
Replacement and Reserve Costs and shall provide the Township with invoices evidencing such
costs. Notwithstanding the foregoing, AWS shall notify the Township in writing once it has
expended sixty percent (60%) of its annual Fund Allocation for such year. Upon receipt of any
such notice, the Township or the Township Engineer shall, in its sole discretion, authorize, in
writing AWS to utilize funds in excess of the sixty percent (60%) threshold. In the event the
actual Replacement and Reserve Costs in any given year are greater than the Fund Allocation
for such year, arising from an extraordinary cost not otherwise anticipated by the parties, AWS
shall directly pay for any such excess costs and shall be entitled to receive an adjustment or a
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credit to the Fund Allocation for the following year, equal to the amount of such excess
overpayment by AWS..
7.6 In the event that The Sustainable Water and Sewage Systems Act, S.O. 2002, c.29, or
similar legislation requires an owner or operator of a water or sewer system to comply with
certain regulations governing the accounting of the costs associated with operating such
systems, including costs of replacement and maintaining a replacement fund, AWS and the
Township shall comply with all applicable laws and regulations related thereto. This Agreement
shall be amended, modified or replaced to conform to any such laws and regulations, at the time
they come into effect.
ARTICLE 8. ACCESS TO THE SEWERS
8.1 For purposes of inspecting the Sewers on an annual or bi-annual basis, conducting
testing of the Sewers from time to time, and in cases of emergency, AWS hereby agrees to
permit and facilitate the Township and/or the Township Engineer access to the Sewers during
hours of operation upon the receipt of reasonable notice by AWS, provided that notice to AWS
shall not be required in the case of an emergency necessitating access by the Township and/or
the Township Engineer and further provided that AWS shall permit and facilitate immediate
access to the Sewers in the case of an emergency.
8.2 AWS hereby grants to the Township all necessary easements for the appropriate access
and egress over and across the Lands for purposes of inspecting the Sewers and reasonable
appurtenances thereto pursuant to section 8.1. AWS further agrees to do all acts or things
necessary to ensure the access of the Township as may be required by the Township and/or
the Township Engineer to inspect the Sewers.
8.3 The Township hereby grants to AWS all necessary licences for the appropriate access
and egress over and across any lands or roadways of the Township on or under which the
Sewers are located, for purposes of undertaking its responsibilities under Article 3 herein and
providing any emergency services that may be required. The Township further agrees to do all
acts or things necessary to ensure the access of AWS as may be required by AWS in order to
undertake its responsibilities hereunder.
8.4 AWS hereby covenants and agrees to obtain from Horseshoe, or such other property
owner, all necessary easements for the appropriate access and egress over and across any
lands of Horseshoe, or such other property owner, on or under which the Sewers are located,
for purposes of undertaking its responsibilities under Article 3 herein and providing any
emergency services that may be required.
ARTICLE 9. COLLECTION OF FEES
9.1 The parties hereby acknowledge and agree that as a private service provider, AWS shall
contract with Horseshoe, the Developers or such other party as it deems appropriate, for the
collection of fees for those services provided to End Users from the Community Sewers, and
Horseshoe, the Developers or such other party as it deems appropriate, will be solely
responsible for issuing invoices to such End Users and collecting all fees payable under such
invoices. AWS shall be responsible for issuing invoices to and collecting all fees payable under
such invoices directly from those End Users who receive services from the Town Sewers.
Other than as required under section 4.1 (e), the Township shall not be required to collect any
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such fees and shall have no role in the enforcement of remitting fees for services provided by
AWS for either the Community Sewers or the Town Sewers.
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ARTICLE 10. INSURANCE
10.1 A WS shall, upon transfer of ownership of each of the Sewers from the Developers and
the Township and throughout the term of this Agreement, at its sole cost and expense, self
insure the Sewers for all major perils, including, fire and standard extended coverage, sprinkler
leakages (where applicable), earthquake, flood and collapse.
10.2 The parties acknowledge and agree that any payments for claims arising from the
operation of the Sewers, including sewer backup, are the sole responsibility of AWS.
10.3 In the event of damage to the Sewers for which a claim is made under the Township's
environmental insurance coverage, the parties acknowledge and agree that the aforementioned
insurance may be subject to a loss deductible clause and that any payments for claims arising
from damage to the Sewers that fall within the deductible limit are the sole responsibility of
AWS.
ARTICLE 11. DEFAULT
11.1 A default (a "Default") shall be deemed to have occurred if anyone or more of the
following events occur:
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a)
receipt by the Township of notice that AWS has ceased or threatens to cease to
carryon business, whether such cessation of business be either voluntary or
involuntary;
b) receipt by the Township of notice of the impending insolvency of AWS;
c) failure by AWS to meet its obligations to any third party that would affect the
operation of the Sewers; and
d) failure by AWS to remedy a Deficiency within the timeframe allocated by AWS to
be remedied in the Rectification Plan pursuant to section 6.3 herein, which
timeframe shall include any extensions granted or agreed to by the Township.
11.2 In the event of a Default the Township shall give written notice to AWS of the nature of
the Default, and the timeframe, if applicable, within which AWS shall be required to remedy the
Default. If AWS is unable to or fails to remedy such Default within the time frame and the
manner required by the Township, the Township may, in its sole discretion, use the Certified
Cheque, where possible to remedy such Default. Notwithstanding anything to the contrary, the
Township acknowledges and agrees that it may not be entitled to assume responsibility for the
operation of the Sewers in the event of a Default pursuant to section 11 .1 (c), and that such
responsibility may be determined by a trustee in bankruptcy.
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11.3. In the event an Operating Default, as defined in the Municipal Responsibility Agreement,
which continues twenty-four (24) months beyond the timeframe within which AWS was required
to remedy such default, AWS shall immediately upon demand by the Township, transfer
ownership of the Facility and the Sewers to the Township, and do whatever acts as may be
necessary to affect such transfer. In the event of such transfer, this Agreement shall terminate
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and neither the Township nor AWS shall have any further obligation hereunder, with the
exception of A WS's obligation pursuant to Article 12 herein. The transfer referred to herein shall
also refer to any interest AWS may have in the Certified Cheque and the Fund. In addition, to
the remedies provided herein, the Township shall have any and all remedies available to it
under law for termination of this Agreement pursuant to a default.
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11.4 In the event the Township is required to assume responsibility for operation of the
Sewers pursuant to a Default under section 11.3 or otherwise obtains ownership of the Sewers,
AWS shall assist and cooperate with the Township and/or its agents with effecting such
assumption of operations or transfer of ownership, including but not limited to, providing:
documentation and records relevant to the operation of the Sewers, employees and/or
contractors to assist in operating the Sewers and unrestricted access to the Sewers. AWS shall
also transfer to the Township the full amount of monies reserved in the Fund in accordance with
Schedule "D", less any amounts expended on Replacement and Reserve Costs pursuant to
Article 7 herein. AWS hereby covenants and agrees to continue to provide sewage service
through the Facility, notwithstanding the assumption of operation by or transfer of ownership of
the Sewers to the Township.
ARTICLE 12. INDEMNITY
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12.1 AWS agrees to indemnify and shall keep indemnified and save harmless the Township
from all loss, damage, cost and expense, claims, demands or actions of every nature and kind
whatsoever, including death or injury, arising from or in consequence of the negligent
maintenance or operation of the Sewers or any matter under this Agreement, whether such
loss, damage, cost or expense, claims, demands or actions is sustained by the Township, AWS,
or their several and respective employees, workmen, servants, agents or councilors or any
other person.
ARTICLE 13. TERMINATION
13.1 Unless earlier terminated as a result of an Operating Default, under the Municipal
Responsibility Agreement or a Default, this Agreement shall remain in effect until such time as
AWS transfers ownership or operations of the Sewers to another party and the Agreement
referred to in section 13.3 below is executed. AWS shall not transfer ownership or operations of
the Sewers to another party without the prior written consent of the Township, which shall not be
unreasonably withheld.
13.2 Either party may terminate this Agreement without cause upon twelve (12) months'
advance written notice to the other party. In the event of such termination, AWS shall transfer
ownership of the Town Sewers to the Township and AWS shall comply with its obligations as
set out in section 11.5 herein.
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13.3 Prior to any transfer of ownership or operation of the Sewers, AWS shall have provided
the Township with thirty (30) days notice of such impending transfer and shall have advised the
prospective owner or operator of this Agreement and its requirement to enter into a similar
agreement with the Township and such similar agreement shall have been executed by the
prospective owner or operator and the Township. Notwithstanding the foregoing, nothing
contained herein shall restrict AWS from effecting any changes in corporate ownership or
structure and continuing its obligations hereunder subsequent to any such change in corporate
ownership or structure.
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13.4 Upon the coming into force of Municipal Act, 2001 and the enactment of regulations
permitting the creation of municipal infrastructure corporations for the operation of water
systems, sewers and sewage treatment plants, the parties agree to consider the benefits of
creating and participating in such corporation, and if necessary, to amend or rescind this
Agreement in consideration thereof.
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ARTICLE 14. GENERAL PROVISIONS
14.1 All notices, requests, demands or other communications by the terms hereof required or
permitted to be given by one party to another shall be given in writing by personal delivery or by
registered mail, postage prepaid, addressed to such other party or delivered to such other party
as follows:
to the Township at: Box 100
Oro Station, ON LOL 2XO
Attention: Township Clerk
Fax: (705) 487-0133
to AWS at:
1 00 King Street West
P.O. Box 57159, Jackson Station
Hamilton, ON L8P 4X1
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Attention:
Fax:
(905) 521-9613
or at such other address as may be given by any of them to the others in writing from time to
time and such notices, requests, demands or other communications shall be deemed to have
been received when delivered, if facsimile transmission three (3) business hours after
transmission, or, if mailed, three (3) days after the day following the day of the mailing thereof;
provided that if any such notice, request, demand or other communication shall have been
mailed and if regular mail service shall be interrupted by strikes or other irregularities, such
notices, requests, demands or other communications shall be deemed to have been received
three (3) days after the day following the resumption of normal mail service.
14.2 The parties hereto shall sign such further and other documents, cause such meetings to
be held, resolutions passed and by-laws enacted, exercise their vote and influence, do and
perform and cause to be done and performed such further and other acts and things as may be
necessary or desirable in order to give full effect to this Agreement and every part hereof.
14.3 The parties hereto acknowledge and agree that this Agreement shall be registered on
title to the Lands and any existing encumbrances registered on title to the Lands shall be
postponed in favour of the registration of this Agreement.
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extension or variation of this Agreement shall operate as a waiver of this provision.
14.5 This Agreement constitutes the entire agreement between the parties hereto with
respect to all of the matters herein and its execution has not been induced by, nor do any of the
parties hereto rely upon or regard as material, any prior or concurrent representations or
writings whatsoever not incorporated herein and made a part hereof.
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14.6 In the event that any provision of this Agreement shall, for any reason, be determined to
be invalid, illegal or unenforceable in any respect, the parties hereto shall negotiate in good faith
and agree as to such amendments, modifications or supplements of this Agreement, that to the
maximum extent practicable in light of such determination, implement and give effect to the
intentions of the parties as reflected herein, and the other provisions of this Agreement shall, as
so amended, modified or supplemented, or otherwise affected by such action, remain in full
force and effect.
14.7 This Agreement may be executed in counterparts and by fax, each of which counterpart
shall be deemed an original, and all of which when executed and delivered, shall together
constitute one and the same instrument.
14.8 Neither this Agreement nor any provision hereof may be changed, modified, amended or
waived except by written agreement executed by each party hereto.
14.9 This Agreement shall be construed in accordance with, and governed by, the laws of the
Province of Ontario.
14.10 This Agreement and the covenants, provisions, conditions and schedules therein, shall
enure to the benefit of and be binding upon the respective successors and assigns of each of
the parties hereto.
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ARTICLE 15. COSTS OF ADMINISTRATION
15.1 AWS hereby covenants and agrees to pay, in addition to the costs associated with the
retention of the Township Engineer, to the Township, any and all reasonable costs associated
with the negotiation and administration of this Agreement, including any and all costs charged to
the Township for retaining legal counselor other consultants, excluding the maximum amount
allocated to the Township Engineer, to the maximum of ten thousand dollars ($10,000.00). For
any amounts greater than such amount, the Township shall provide a copy of the invoice to
AWS for its review and approval as to payment.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement as of
the date first written above.
THE TOWNSHIP OF ORO-MEDONTE
AMERICAN WATER SERVICES
CANADA CORP.
Per: ~,WV~
Name: J Neil Craig
Title: Mayor
Per.
Name:
Title:
P:fh~ fftM~
Name: MOl A C. WALL ~
Title: ASSISTANT SECRETARY
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Per:
Name: M ri 1 n Pennyc
Title: Township Clerk
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SCHEDULE "A"
LEGAL DESCRIPTION OF THE LANDS
Part of Parcel 1-3, Section 51-MED-3, in the Township of Oro-Medonte (formerly in the
Township of Oro), in the County of Simcoe, designated as Part 1 on Plan 51R-30017, being
Part of the East Half of Lot 2, Concession 3
Part of Parcel 1-3, Section Med-3, in the Township of Oro-Medonte (formerly in the Township of
Oro), I the County of Simcoe, designated as Part 2 on Plan 51 R-27515, being Part of the East
Half of Lot 2, Concession 3
Parcel 1-4, Section 51-0ro-3, being composed of Part of Lot 1, Concession 4, designated as
Parts 1, 2, and 4 on Plan 51 R-15088, Township of Oro-Medonte (formerly in the Township of
Oro), County of Simcoe, and Parcel 1-22, Section 51-0ro-3, being part of Lots 1 and 2,
Concession 4, Part of Lots 1 and 2, Concession 3, Part of the Original Road Allowance between
Concessions 3 and 4 (Closed by By-Law No. 814 registered as Instrument No. 164818,
designated as Part 3 on Plan 51 R-15088 and Parts 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 15, 24, 25, 26,
27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47 and 48, Plan
51 R-28722, Township of Oro-Medonte (formerly Township of Oro), County of Simcoe
The Remainder of Parcel 1-3, Section 51-0ro-3, being composed of Part of Lot 1, Concession
4, in the Township of Oro-Medonte (formerly in the Township of Oro), in the County of Simcoe
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.
.
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SCHEDULE "8"
DESCRIPTION OF THE SEWERS
. . Original trunk sewer
. Trunk Sewer Extension to be constructed
. Phased-in construction of collector sewers, forcemain and pumping station to be located
within the Adult Community and connected to the Facility (the "Community Sewers")
. Additional collector sewers, forcemains and pumping station, which may be constructed
on lands owned by the Township within close proximity to the Adult Community and
connected to the Facility (the "Town Sewers")
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, .
;
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--
SCHEDULE "C"
CERTIFICATE OF APPROVAL FOR THE SEWERS
[to be provided once issued by the Ministry]
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..
SCHEDULE "D"
REPLACEMENT AND RESERVE COSTS
The current configuration of the sewer does not include pumps, other rotating equipment or
pumping stations (that degrade over time).
The Replacement Fund Allocation is structured to include routine inspection and maintenance of
the sewers and manholes, as well as replacement. Routine sewer maintenance is generally
comprised of:
. Camera inspection every five (5) years or as required
. Annual inspection of manhole and frame condition
. Local sewer flushing on an as required basis
A contribution will be made to the Replacement Fund Allocation on an annual basis, to cover
costs associated with the above, as follows:
YEAR CONTRIBUTION YEAR CONTRIBUTION
1 $5,000 11 $6,719
2 $5,150 12 $6,921
3 $5,305 13 $7,129
4 $5,464 14 $7,343
5 $5,628 15 $7,563
6 $5,796 16 $7.790
7 $5,970 17 $8,023
8 $6,149 18 $8,264
9 $6,334 19 $8,512
10 $6,524 20 $8,767
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