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2008-097 Authorize the Execution of a Sewer Responsibility Agreement between the Township of Oro-Medonte and American Water Services Canada Corp.THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE BY-LAW NO. 2408-097 A By-law to Amend 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 Ganada Garp. WHEREAS Section 23 of the MunicipaiAcf, 2QQl, S. D. 20Qi, 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, 2Q41, S.Q. 2QQ1, 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 Corporation of the Township of Oro-Medonte did enact By-law No. 2003-007, Being a By-law to Authorize the Execution of a Sewer Responsibility Agreement between the Township of C?ro-Medonte and American Water Services Canada Corp., on the 5th day of February 2003; AND WHEREAS Council of The Corporation of the Township of ©ro-Medonte now deems it expedient to amend said agreement; NOW THEREFORE the Council of the Township of Qro-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 Jufy, 2008 for the Sewer 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. THE CORPORA,~'ION OF THE TOWNSHIP OF ORO-MEDONTE r H.Ss °~ 1 ~ . _ , r, - ~- Cierk, J. Douglas Irwin 444.E Schedule "A" to By-Law No. 2008-097 ASSIGNMENT AND ASSUMPTION AGREEMENT and CONSENT TO ASSIGNMENT OF AGREEMENT This Agreement and Consent are made as of the 10day 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 FIl2ST 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 American Water Services Canada Corp., now the Assignor, have entered into an agreement dated February 5, 2003 {the "Sewers Agreement"} in respect ofthe construction and operation of certain Sewers, a copy of which is attached as schedule "A"; AND WHEREAS the Assignee has purchased the Lands from the Assignor and the Ilarseshae Valley Resort from Horseshoe; AND WHEREAS the Assignor would continue to operate the Facility and Sewers in accordance with the operating agreement entered into between the Assignor and Assignee as of the Effective Date {as such term is defined below); 2 AND WHEREAS pursuant to section 13.1 of the Sewers Agreement, the Assignor is prohibited from. transferring ownership of the Sewers to the Assignee without the prior written consent of the Township and pursuant to section 13.3 of the Sewers Agreement, 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 Sewers to the Assignee subject to execution of the within 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: 1. 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 aver and conveys its interest in the Sewers Agreement to the Assignee as of the Effective Date, TO HAVE AND TO 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 Covenants and Representations. The Assignor repeats and restates the representations and warranties contained in sections 2.1(a) and (b) of the Sewers 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 good standing under the laws of the Province of Ontario, with full legal right, paver and. authority to enter into and perfarrn its obligations under the Sewers Agreement and. this Agreement and. Consent; and 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 of the Assignee. 6. Township's Consent. The Township hereby consents to the transfer of the Sewers and to the assignment of the Sewers 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 far consent to any further transfer of the sewers and Sewers 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 Sewers and the assignment of the Sewers Agreement itself and except for any amendments to the Sewers 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 Sewers Agreement; a) the Township repeats and restates the covenants and agreements contained in sections 4.1 {a) to and including (fj of the Sewers Agreement; b) the Township hereby releases the Assignor from its obligations under the Sewers Agreement; and c} in consideration of the assumption ofthe Sewers Agreement by the Assignee, and other good and valuable consideration, the receipt anal sufficiency of which are hereby acknowledged by the Township, the Township hereby releases anal. 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 over 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, or any of them, for or by reason of any cause, matter or thing whatsoever relating to the Sewers 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 13.3 of tl~e Sewers Agreement. b) The parties confirm and agree that the Assignee is not one of the Developers and, hence, all the terms of the Sewers Agreement pertaining to the Developers, the Development, the Adult Community are hereby deleted mutatis mutandis. c) The parties confirm and agree that the Trunk Sewer Extension have been constructed, that all terms anal conditions of the Sewers Agreement pertaining to the said construction have been complied with (including without limitation the issuance of the certificates referred. to in sections 1.1(e} and 1.1(fj of the Sewers Agreement and such other covenants contained in sections 2.1(e), 2.1(d), 3.1(a), 3.1(b), 3.1(c), 3.1(e), 31(fj, 3. I (g), 3.1(h), 3.2, 3.4 and 6.2 of the Sewers Agreement) and that all such provisions pertaining to the said construction are hereby deleted mutatis mutandis. For greater certainty, all ofthe terms and conditions pertaining to the operation and. maintenance afthe Trunk Sewer Extension andlor the construction, operation and maintenance of the Sewers contained in such sections shall remain. in full force and effect, unamended. d) The parties acknowledge and agree that the existing Certificates of Approval issued by the Ministry in respect of the Facility and Sewers 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 cormnercially reasonable efforts to amend the Certificates of Approval as aforesaid forthwith after closing of the purchase anal sale of the Lands and to provide the Township with copies of the amended Certificates of Approval. forthwith upon receipt of same. e) The parties acknowledge and agree that the Assignor has provided the Township with a certified cheque or bank draft in the amount of $50,000 as financial assurance far the Sewers in accordance with section 3.1(e) of the Sewers 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 certified cheque in the same amount and the Township shall return the certified cheque of the Assignor to the Assignor. ~ Section 1.1(p) of the Sewers Agreement is hereby amended by deleting therefrom the words "service agreement with the Developer ar AtUS, respectively;" and inserting in their stead the words "service agreement or otherwise;". g) The Sewers Agreement is hereby amended by deleting therefrom the first sentence of section 13.1. h) Seetion 14.1 of the Sewers Agreement is hereby amended by deleting therefrom the notice information for the Assignor (AWS} and inserting instead. the following notice information for the Assignee: 1101 Horseshoe galley 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 ofthe Sewers Agreement remain in full farce 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 Sewers 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 or policy regarding the operation, maintenance or 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 Sewers 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. 6 I} 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. IN WITNESS WHEREOF the parties hereto have executed this Agreement and Consent as ofthe date above first written. AM .CAN WATER CANADA CORP., (Assignor) Per: Name: Title: Per: Name: ~'' Title: UWe have the authority to bind the SKYLINE UTILITY SERVICES INC. (Assignee) - .~~ Per: - Name: ~~;~,;~, ~1,~<<;,~ Title: ~~ ` _, I have the authority to bind the Corporation. THE TOWNSHIP OF ORO-MEDONTE (7'~wnship) Per: Na e: H. S . ghes Title: Md y o r I ;; Pew., - , ~ ~ ~, _ : _ ~ ~. . h'arne: 'J. Douglas Irwin Title: C1.e°rk UWe have the authority to bind the Corporation.