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2008-096 Amend 2001-101, Execution of a Municipal Responsibility AgreementTHE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE BY-LAW NO. 2008-09fi A By-law to Amend By-law No. 2001-101, Being a By-taw to Authorize the Execution of a Municipal Responsibility Agreement between the Township of Oro- Medonte and Azurix North America {Canada) Gorporation WHEREAS Section 23 of the Municipal Act, 2D01, S.Q. 2DDt, c.25, as amended, provides that a municipality may enter into an agreement with any person to construct, maintain and operate a sewage works; AND WHEREAS Section 9 of the Municipal Act, 2DDi, S.Q. 20D1, c.25, as amended, provides that a municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act; AND WHEREAS the Council of The Gorporation of the Township of Oro-Medonte did enact By-law No. 2001-101, Being a By-law to Authorize the Execution of a Municipal Responsibility Agreement between the Township of Qro-Medonte and Azuix North America (Ganada) Corporation, on the 3ra day of October 2001; AND WHEREAS Council of The Corporation of the Township of tJro-Medonte now deems it expedient to amend said agreement; NOW THEREFCJRE the Council of the Township of fJro-Medonte hereby enacts as follows: That the Mayor and Clerk are hereby authorized to execute the Assignment and Assumption Agreement and Consent to Assignment of Agreement dated July, 2008 for the Municipal Responsibility Agreement, said agreement attached hereto as Schedule "A" and forming part of this by-law. 2. This by-law shall take effect on the final passing thereof. BY-LAW READ A FIRST AND SECOND TIME THIS 10T" DAY OF JULY, 2008. BY-LAW READ A THIRD TIME AND FINALLY PASSED THIS 10T" DAY OF JULY, 2008. _. i --' Clerk, J.~Douglas Irwin Schedule "A" to By-Law No. 2008-096 ASSIGNMENT AND ASSUMPTION AGREEMENT and CONSENT TO ASSIGNMENT OF AGREEMENT This Agreement anal Consent are made as of the 20 day of July, 2008, AMONG: AMERICAN WATER CANADA CORP., a corporation incorporated under the laws of the Province of Ontario (hereinafter called the "Assignor"} OF THE FIRST PART; -and- SKYLINE UTILITY SERVICES INC., a corporation incorporated under the laws of the Province of Ontario (hereinafter called the "Assignee"} OF THE SECOND PART; -and- THE TOWNSHIP OF ORO-MEDONTE, (hereinafter called the "Township"} OF THE THIRD PART; WHEREAS the Township and Azurix North America (Canada) Corp. have entered into an agreement dated September 30, 2Q01 (the "Municipal Responsibility Agreement"} in respect of the construction and operation of certain sewage treatment facility, a copy of which is attached as schedule "A"; AND WHEREAS Azurix North America (Canada} Corp. has changed its name to American Water Services Canada Corp., which subsequently changed its name to that of the Assignor; AND WHEREAS the Assignee has purchased the Lands from. the Assignor and the Horseshoe Valley Resort from Horseshoe; AND WHEREAS the Assignor would continue to operate the Facility in accordance with the operating agreement entered into between the Assignor and Assignee as of the Effective Date (as such term is 2 defined below); AND WHEREAS pursuant to section 14.2 of the Municipal Responsibility Agreement, the Assignor is prohibited. from. transferring ownership of the Facility to the Assignee without the prior written consent of the Township and the Assignee is required to enter into a similar agreement with the Township; AND WHEREAS the Assignor and the Assignee have requested that the Township agree to the transfer of the Facility to the Assignee subject to execution of the within Agreement and, subject to receiving the benefit of the covenants and agreements of the Assignor and the Assignee hereinafter set forth, the Township has agreed to do so. NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual covenants and agreements hereinafter contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties hereto, the parties hereto agree as follows: Recitals. The parties acknowledge and agree that the recitals hereto are true and incontrovertible, which recitals are hereby incorporated by reference. 2. Effective Date. The effective date of this Agreement and Consent shall be the date of registration of the transfer of the Lands from the Assignor to the Assignee (the "Effective Date"}. 3. Assignment and Assumption. The Assignor hereby assigns, transfers, sets over and corweys its interest in the Municipal Responsibility Agreement to the Assignee as of the Effective Date, T(~ HAVE AND TQ HOLD such interest unto the Assignee, its successors and assigns, forever, subject to the terms hereof. The Assignee hereby accepts this written assignment and covenants and agrees to assume all of the obligations of the Assignor under the Agreement, and covenants to perform such obligations, from and after the Effective Date. 4. Assignor's Representations. The Assignor repeats and restates the representations and. warranties contained in sections 2.1(a) and (b) of the Municipal Responsibility Agreement. 5. Assignee's Covenants. The Assignee hereby represents and warrants in favour of the Assignor and the Township that: a} it is a corporation duly organized, validly existing and in gaud standing under the laws of the Province of Ontario, with full legal right, power and authority to enter into and perform its obligations under the Municipal Responsibility Agreement and this Agreement and Consent; 3 b) it has duly authorized the execution and delivery of this Agreement. and Consent and this Agreement and Consent constitutes a legal, valid and binding obligation afthe Assignee; and c) it is the legal and beneficial owner of the Lands and the Facility. 6. Township's Consent. The Township hereby consents to the transfer of the Facility and to the assignment ofthe Municipal Responsibility Agreement from. the Assignor to the Assignee as and. from the Effective Date, subject to the following terms and conditions: a} this consent does not constitute a waiver of the necessity for consent to any further transfer of the Facility and Sewage Agreement; and b) by giving its consent pursuant to this Agreement and Consent, the Township does not hereby acknowledge or approve any of the terms of this Agreement and Consent as between the Assignor and the Assignee except for the transfer of the Facility and the assignment of the Municipal Responsibility Agreement itself and except for any amendments to the Municipal Responsibility Agreement agreed to by all of the parties hereto. 7. Township's Covenants. The Township hereby acknowledges, covenants and agrees with the Assignor and. Assignee as follows: a) the Township repeats and restates the representations and warranties contained in section 2.2 of the Municipal Responsibility Agreement; a) the Township repeats and. restates the covenants and agreements contained in sections 4.1(a} to and including (c) of the Municipal Responsibility Agreement; b) the Township hereby releases the Assignor from its obligations under the Municipal Responsibility Agreement; and c) in consideration of the assumption of the Municipal Responsibility Agreement by the Assignee, and other goad and valuable consideration, the receipt and sufficiency of which. are hereby acknowledged by the Township, the Township hereby releases and forever discharges the Assignor and its directors, officers, employees, agents, representatives, shareholders, subsidiaries, successors and assigns (collectively, the "Releasees") of and from all covenants, obligations, liabilities, agreements, claims, debts, demands, actions, duties, suits, accounts, indemnities, claims aver liability and causes of action of any kind or nature whatsoever which the Township ever had, now has or which the Township hereafter can, shall or may have against the Releasees, ar any of them, for or by reason of any cause, matter or thing whatsoever relating to the Municipal Responsibility Agreement (collectively, the "Liabilities"), which Liabilities are hereby assumed by the Assignee. 4 Acknowledgments and Amendments. a} The parties confirm and agree that this Agreement and Consent and the assumption provisions contained herein constitute the agreement contemplated by section 14.2 ofthe Municipal Responsibility Agreement. b} The parties confirm and agree that the Assignee is not the Developer and, hence, all the terms of the Municipal Responsibility Agreement pertaining to the Developer, the Development anal the Adult Resort are hereby deleted mzztatis mutandis. c) The parties acknowledge and agree that the existing Certificates of Approval issued by the Ministry in respect of the Facility can only be amended to denote the Assignee as the owner of the Lands once title to the Lands has been transferred to the Assignee; and the Assignor and Assignee hereby undertake, covenant and agree to use commercially reasonable efforts to amend the Certificates of Approval as aforesaid forthwith after closing of the purchase and sale of the Lands and to provide the Township with copies of the amended Certificates of Approval forthwith upon receipt of same. d} The parties acknowledge and. agree that the Assignor has provided the Township with a letter of credit in the amount of $363,600 as replacement financial assurance in accordance with section 3.1(d} of the Municipal Responsibility Agreement. Concurrently with the execution of this Agreement and Consent by the Assignor and the Township, respectively, the Assignor shall provide the Township with a replacement letter of credit cheque in the same amount and substantially the same form and the Township shall return the letter of credit provided by the Assignor to the Assignor. e} Section 9.1 of the Municipal Responsibility Agreement is hereby amended by deleting therefrom the ward "Developer" and inserting in its stead the words "Assignee". f) The parties confirm and. agree that the Assignor, as operator of the Facility, and the Assignee, as owner of the Lands and Facility, will bath obtain insurance to saver their respective interest in and responsibility with respect of the Facility anal Lands, which policies taken together would cover the Township against the coverage stipulated in section 10.1 of the Municipal Responsibility Agreement, except for the professional liability and errors and omissions coverage set out in section 10.1(d} which is hereby deleted. In the event that any design and construction work will be commissioned by the Assignee in respect of the Facility, the Assignee shall cause an error and omission insurance to be issued in respect of such work covering, ilztez° olio, the Township. g} The Municipal Responsibility Agreement is hereby amended by deleting therefrom section 14.1. 5 h) Section 15.1 of the Municipal Responsibility Agreement is hereby amended by deleting therefrom the notice information for the Assignor (Azurix) and inserting instead the following native information far the Assignee: 1101 Horseshoe Valley Road Comp. 10, RR #1 Barrie, Ontario, Canada L4M 4Y8 Attention: VP Operations and Development Fax: 705.835.2149 i) The parties confirm and agree that all other terms of the Municipal Responsibility Agreement remain in full force and effect, unamneded. 9. General. a) It is understood and agreed that all capitalized terms and expressions when used in this Agreement and Consent, unless otherwise defined, have the same meaning as ascribed to them in the Municipal Responsibility Agreement. b) The Assignee and the Township agree that amendments to this Agreement may have to be made if required to reflect changes to Provincial legislation ar policy regarding the operation, maintenance ar funding of sewage treatment works and related facilities. c) This Agreement and Consent shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. d) The Assignor and the Assignee shall, at their expense, promptly execute such further assurances with respect. to the Municipal Responsibility Agreement as the Township reasonably requires from time to time. e) This Agreement and Consent may be executed in any number of counterparts and by different parties in separate counterparts, each of which when. so executed shall be deemed to be an original and all of which taken together shall. constitute one and the same agreement. f) This Agreement and Consent shall enure to the benefit of the parties hereto and their respective successors, personal representatives, executors and permitted assigns, and shall be binding upon the parties hereto and their respective successors, personal representatives, executors and permitted assigns. 6 IN WITNESS WHEREOF the parties hereto have executed this Agreement and Consent as ofthe date above first written. AME AN WATER CANADA CORP., (assignor} Per: Name; Title: Per: Name: Title: UWe have the authority to bind the Corpc SKYLINE UTILITY SERVICES INC. (assignee} ., Per: ~ ;, r Name; ~~~ ~t • ~ ~~,~~~ ~ ;r Title; I have the authority to bind the Corporation. THE TOWNSHIP OF ORO-MEDONTE (Tcawnship} Per: ame: H . S . gh e s Title: ?~~ya Pe ~' -' , ~'-~- -~- Name: J. .Douglas Irwin Title: C l e r k UWe have the authority to bind the Corporation.