2014-075 Agreement with Skyline Utility Services Inc. Waste Water Treatment PlanThe Corporation of the Township of Oro - Medonte
By -law No. 2014 -075
A By -law to authorize an agreement between The Corporation of the Township of
Oro - Medonte and Skyline Utility Services Inc. with respect to the Horseshoe
Valley Resort Waste Water Treatment Plant as a municipal capital facility
(Horseshoe Valley Resort Waste Water Treatment Plant
Municipal Capital Facility By -law)
Whereas section 110 of the Municipal Act, 2001, S.O. 2001, c. 25, as amended,
provides that the council of a municipality may enter into agreements for the provision of
municipal capital facilities_ by any person and may pass by -laws to enter into agreement
relating thereto;
And Whereas paragraph 6 of subsection 2(1) of Ontario Regulation 603/06, as
amended, prescribes municipal capital facilities for water, sewers, sewage, drainage
and flood control;
And Whereas the Horseshoe Valley Resort Waste Water Treatment Plant ( "WWTP ") is
a facility that is owned and operated by Skyline Utility Services Inc. and provides waste
water treatment services to lands and users within the Township of Oro - Medonte;
And Whereas Skyline Utilities Inc. proposes to transfer the WWTP to the Township as
a municipal capital facility pursuant to section 110 of the Municipal Act, 2001;
And Whereas the Council of The Corporation of the Township of Oro - Medonte is
desirous of entering into an agreement to accept the WWTP as a municipal capital
facility in order to be authorized to impose a fee or charge upon persons that derive or
will derive a benefit from waste water services provided by the WWTP that will ensure
the continued operation of the WWTP and the improvement and upgrade of the facility
by Skyline Utility Services Inc.;
Now Therefore the Council of the Township of Oro - Medonte hereby enacts as follows:
The Township is authorized to enter into an agreement pursuant to section 110 of
the Municipal Act, 2001 with Skyline Utility Services Inc. for the provision of a
municipal capital facility for sewage facility, being the WWTP, in accordance with
Ontario Regulation 603/06, as amended (the "Agreement ") in substantially the form
and substance as set out in Schedule "A" to this by -law.
2. That the Mayor and Chief Administrative Officer are authorized to execute the
Agreement.
3. That the Township shall be authorized to take such additional actions and execute
such additional documents in furtherance of the requirements and authorities set out
in the Agreement.
4. This by -law shall take effect on the final passing thereof.
By -law read a First, Second and Third time, and Passed this 21s' day of May, 2014.
The Corporation of the Township of Oro - Medonte
, H.S. H
Depu Clerk, Janette Teeter
MUNICIPAL CAPITAL FACILITY AGREEMENT
THIS AGREEMENT made this 01 day of May 2014.
BETWEEN:
SKYLINE UTILITY SERVICES INC.
( "Skyline ")
- and -
SHE CORPORATION OF THE TOWNSHIP OF ORO- MEDONTE
( "Township ")
WHEREAS:
(a) Skyline is the owner of a facility known as the Horseshoe Valley Resort Waste Water
Treatment Plant ( "WWTP ") located within the geographic boundaries of the Township;
(b) The WWTP, originally constructed in 1997 and subsequently expanded in 2001,
provides waste water treatment services to lands and users within the Township;
(c) On September 30, 2001 the Township and Azurix North America (Canada) Corp.
( "Azurix ") entered into a Municipal Responsibility Agreement with respect to the
expansion and operation of the WWTP;
(d) The Township and American Water Services Canada Corp. ( "AWS "), a successor of
Azurix, entered into a Sewer Responsibility Agreement on February 5, 2003 whereby,
among other things, the Township agreed to use its best efforts within its jurisdiction, to
enact a by -law allowing AWS to collect water and /or sewage fees from Township
residents which would provide an enforcement mechanism by which AWS could have
remedies for non - payment of fees;
(e) On July 10, 2008 Skyline, American Water Canada Corp. ( "AWC), a successor of AWS,
and the Township entered into an Assignment and Assumption Agreement, with respect
to the WWTP and the Municipal Responsibility Agreement whereby the Township
provided consent to Skyline acquiring the WWTP and acknowledged that AWC would
continue to operate the WWTP. Simultaneously, Skyline and AWC entered into an
Operation, Maintenance and Management Agreement;
(f) Skyline operates the WWTP as a private facility pursuant to the Assignment and
Assumption Agreement and pursuant to certificates of approval issued by the Ministry of
the Environment;
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(g) Section 110 of Municipal Act, 2001, S.O. 2001, c. 25, allows municipalities to enter into
agreements with persons for the provision of municipal capital facilities, including
facilities for sewage;
(h) Skyline proposes to transfer the WWTP to the Township as a municipal capital facility
pursuant to section 110 of the Municipal Act, 2001 and the Township proposes to
impose fees and charges under Part XII of the Municipal Act, 2001 upon users for
sewage treatment services;
(i) The Township shall re- convey the WWTP to Skyline, upon passage of one or more by-
laws to constitute the WWTP as a municipal capital facility and to impose fees and
charges for wastewater services.
NOW THEREFORE WITNESSETH that in consideration of the covenants and premises
contained herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties hereto covenant and agree with, each other as
follows:
DEFINITIONS
1 In this Agreement, the following terms shall have the following meanings:
(a) "Agreement' means this agreement expressly made pursuant to section 110 of
the Municipal Act, 2001;
(b) "By -law" means a by -law duly enacted by the Council pursuant section. 110 of
the Municipal Act, 2001;
(c) "Council' means the council for the Township;
(d) "Date of Completion" means August 15, 2014;
(e) "MOE" means the Ministry of the Environment;
(f) "Municipal Responsibility Agreements" mean the Municipal Responsibility
Agreement entered into between the Township and Azurix and the Sewer
Responsibility Agreement entered into between the Township and AWS;
(g) "Party" means Skyline or the Township and "Parties" means both Skyline and the
Township ";
(h) "Services" mean the sewage services supplied by the WWTP;
(i) "Skyline" means Skyline Utility Services Inc.;
(j) "Tetra Tech Report" means the Report to Skyline Utility Services Inc. from
TetraTech entitled "Horseshoe Valley Resort WWTP — Summary of
Recommended Upgrades" dated January 14, 2013;
(k) "Township" means The Corporation of the Township of Oro - Medonte;
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(1) "Upgrades" means the upgrades to the WWTP comprising the influent screens,
SCADA upgrades and SBR mixing all as set out in sections 2.2, 2.3 and 2.5,
respectively, of the Tetra Tech Report, and as outlined in the agreement between
Skyline and Western Mechanical Electrical Millwright Services Ltd.;
(m) "Users" means the persons and properties who are provided sewage services
from the WWTP as set out in Schedule "A ";
(n) "WWTP" means the Horseshoe Valley Resort Waste Water Treatment Plant.
TRANSFER
2. The Parties agree as follows:
(a) Skyline shall transfer the WWTP to the
ONE DOLLAR ($1.00), the receipt
acknowledged by the Township;
Township for a nominal consideration of
and sufficiency whereof is hereby
(b) the Township shall, upon passage of one or more by -laws to constitute the
WWTP as a municipal capital facility and to impose fees and charges for
_ wastewater services upon the Users, re- convey the WWTP to Skyline (which
Skyline shall accept) for a nominal consideration of ONE DOLLAR ($1.00), the
receipt and sufficiency whereof is hereby acknowledged by Skyline.
OPERATION AND ADMINISTRATION
3. Notwithstanding the transfer of the WWTP to the Township, Skyline covenants and
agrees that it shall remain solely and wholly responsible for the operation and
administration of the WWTP and the provision of services to Users without interruption.
Skyline further covenants and agrees that, following the enactment of the fees and
charges by -law, the operation of the WWTP shall not be discontinued for non - payment
of fees and charges, or for any other reason, without the express written consent of the
Township.
MAINTENANCE AND REPAIR
4. Skyline covenants and agrees to be solely and wholly responsible for all maintenance
and repairs of the WWTP, including all repairs and rectifications that may be necessary
in order to ensure its continued and future operation in compliance with all federal,
provincial and municipal laws and requirements in accordance with the Municipal
Responsibility Agreements.
UPGRADES
5. Skyline covenants and agrees to commence the Upgrades to the WWTP no later than
May 19, 2014 and to complete the Upgrades no later than the Date of Completion.
Should Skyline fail to satisfy either of the aforementioned requirements by the above -
noted dates, Skyline hereby grants the Township a right of entry onto its lands to
undertake and complete the Upgrades. Without limiting the generality of the foregoing,
[DHP 00368758 151
Skyline agrees that the Township shall be entitled to avail itself of the authority to
undertake remedial action as set out in section 446 of the Municipal Act, 2001. The
Parties acknowledge that a technical amendment to the Certificate of Approval for the
WWTP was requested by the MOE to include the Upgrades and that the MOE has not
yet processed or executed the technical amendment. The Parties agree that any delay
resulting from the MOE not having processed and executed the technical amendment
will be grounds to extend the Date of Completion and the Parties agree to act
reasonably in extending the Date of Completion in such circumstances.
LETTER OF CREDIT
6. Skyline agrees to file with the Township, upon the execution of this Agreement, an
irrevocable letter of credit issued from a Canadian Chartered Bank that is satisfactory in
form to the Township's Treasurer in the amount of $515,896.00. Skyline agrees that the
Township shall be entitled to draw upon said letter of credit to the extent that it deems to
be appropriate; in its -sole and absolute discretion, should Skyline fail to carry out and
complete the Upgrades to the WWTP as set out in this Agreement. The Township shall
return the letter of credit to Skyline's issuing financial institution once the Upgrades are
completed in accordance with this Agreement.
FEES & CHARGES
7. Upon the WWTP being declared by Council resolution to constitute a municipal capital
facility within the meaning of O. Reg. 603/06, the Township acknowledges that it will
have the authority to impose fees and charges on the Users for the costs payable for the
Services provided to them on behalf of the Township and to collect such fees and
charges. Upon the authorization of the Council, the Township shall impose fees and
charges, which may increase from time to time, on the Users who receive Services from
the WWTP in such amounts as may be permitted pursuant to Part XII of the Municipal
Act, 2001, such fees and charges to comprise costs related to:
(a) operation of the WWTP;
(b) immediately- required maintenance and repair of the WWTP;
(c) funds to be set aside in a reserve fund for future upgrades, improvements,
repairs and maintenance;
(d) administrative costs incurred by the Township and Skyline.
REMITTANCE OF PORTION OF FEES & CHARGES TO SKYLINE
8. A portion of the fees and charges collected by the Township pursuant to Section 7
(being the portion related to operating and administrative costs of Skyline) shall be
remitted to Skyline on a quarterly basis on the following dates:
(i) February 28
(ii) May 31
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(iii) August 31
(iv) November 30
The Township makes no representations as to any amounts collected being sufficient or
satisfactory to reimburse Skyline in full for any costs incurred by Skyline. If any fees and
charges are not collected, the Township shall transfer the balance owing to the tax roll of
the properties to which Services have been supplied pursuant to section 398 of the
Municipal Act, 2001 and collect same in accordance with the provisions thereof.
RESERVE FUND
9. The Township shall establish a reserve fund pursuant to the Municipal Act, 2001
whereby a portion of the fees and charges collected shall be deposited in order to pay
for future upgrades, improvements, repairs and maintenance to the WWTP. Skyline shall
be entitled to seek funds from the reserve fund in accordance with the terms of Article 7
of the Municipal Responsibility Agreement.
SKYLINE'S ACKNOWLEDGMENTS
10. Skyline acknowledges as follows:
(a) that its existing Municipal Responsibility Agreements with the Township will
remain fully in force and shall continue to apply until such time as said
agreements are amended or terminated. The Parties agree that this Agreement
applies in the event of a conflict between this Agreement and the provisions of
the Municipal Responsibility Agreements pertaining to the collection of fees and
charges and, specifically, section 9.1 of the Municipal Responsibility Agreement;
(b) that the Township will undertake an Environmental Assessment /Master
Environmental Servicing Plan process with respect to the current and future
waste water servicing needs for the Township and that Skyline shall cooperate,
as necessary, with respect to the Township's efforts as they relate to the
Horseshoe Valley Corridor provided that nothing shall be interpreted as
committing Skyline to being involved with any process that extends to the
Township at large or to other areas of the Township.
NO FETTERING OF COUNCIL'S DISCRETION
11. Notwithstanding any other provisions of this Agreement, the Parties hereto agree with
each other that none of the provisions of this Agreement (including any statement of the
Parties' intentions) are intended to operate, nor shall have the effect of operating, in any
way to fetter the discretion of the Council which authorizes the execution of this
Agreement or any of the Township's successor councils in the exercise of any of
Council's discretionary powers, duties or authorities, including the enactment of any fees
and charges by -laws. Skyline acknowledges that it will not obtain any preferential or
advantageous consideration or treatment by the Council or the Township by virtue of it
having entered into this Agreement.
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NOTICE
12. Any notice required to be provided by this Agreement shall be provided by either Party to
the other by pre -paid postage delivery or by email to the person and to the addresses
set out below:
(a) to Skyline:
Skyline Utility Services Inc.
90 Eglinton Avenue East, Suite 800
Toronto, ON M4P 2Y3
Attention: Kevin Toth, President & C.O.O, Skyline Hotels & Resorts,
Email: kevint @skylineinvestments.com
(b) to the Township:
The Corporation of the Township of Oro - Medonte
148 Line 7 South
Oro - Medonte, ON LOL 2E0
Attention: Robin Dunn, Chief Administrative Officer
Email: rdunn @oro- medonte.ca
Any notice forwarded by pre -paid postage mail shall be deemed to have been received
by the receiving Party five (5) days from the date of posting.
INDEMNIFICATION
13. Skyline covenants and agrees to well and truly save, defend and keep harmless and
fully indemnify the Township and each of its elected officials, officers, employees and
agents of, from and against all manner of actions, suits, claims, executions and
demands which may be brought against or made upon the Township, except where
caused by the wilful misconduct or negligence of those being indemnified herein, its
elected officials, officers, employees and agents or any of them and of, from and against
all loss, costs, charges, damages, liens and expenses which may be sustained, incurred
or paid by the Township, its elected officials, officers, employees and agents, or any of
them, by reason of, or on account of, or in consequence of the fulfilment by Skyline of its
obligations under this Agreement including the default or breach by Skyline of its
obligations under this Agreement or by reason of any negligence or wilful default of
Skyline, its officers, employees, agents or persons acting under its direction in
connection with Skyline's obligations hereunder. Skyline will pay to the Township and to
each such elected official, officer, employee or agent on demand any loss, costs,
damages and expenses which may be sustained, incurred or paid by the Township or by
any of its elected officials, officers, employees and agents in consequence of any such
action, suit, claim, lien, execution or demand and any monies paid or payable by the
Township or any of its elected officials, officers, employees or agents in settlement of or
in discharge or on account thereof.
COOPERATION & INFORMATION
14. The Parties will cooperate with one another and agree to provide such information thal
either Party may deem necessary and appropriate in order to carry out the matters
contemplated by this Agreement. The Parties agree that at all times and from time to
time hereafter upon every reasonable written request to do so, they shall make, execute,
deliver or cause to be made, done, executed and delivered, all such further acts, deeds,
assurances and things as may be required for more effectively implementing and
carrying out the true intent and meaning of this Agreement.
JURISDICTION TO ENTER INTO THIS AGREEMENT
15. This Agreement is entered into by the Parties as an agreement contemplated by section
110 of the Municipal Act, 2001. It is agreed and acknowledged by the Parties hereto that
each is satisfied as to the jurisdiction of the other to enter into this Agreement and the
- - - -- - -- authority -of -the Township to enact the By -law. Skyline acknowledges and agrees that it
shall not question the jurisdiction of the Township to enter into this Agreement nor
question the legality of any portion thereof, and, likewise, the Township agrees that it
shall not question the jurisdiction of Skyline to enter into this Agreement nor question the
legality of any portion _hereof. The Parties hereto. and their respective successors,
assigns and sub - lessees are and shall be estopped from challenging the jurisdiction of
the other Party to enter into this Agreement in any proceeding before a Court of
competent jurisdiction.
APPLICABLE LAWS
16. This Agreement shall be governed by the law of the Province of Ontario and nothing in
this Agreement shall relieve the Parties from compliance with all applicable federal,
provincial or municipal laws having jurisdiction over the WWTP or the subject matter of
this Agreement.
ENUREMENT
17. The Parties agree that this Agreement shall be enforceable by and against them as well
as their administrators, successors and assigns.
ENTIRE AGREEMENT
18. This Agreement, together with the Municipal Responsibility Agreements, expresses the
final agreement between the Parties hereto with respect to all matters herein and its
execution has not been induced by, nor do any of the Parties hereto rely upon or regard
as material any representations or promises whatsoever not incorporated herein or
made a part hereof. Any alteration, amendment or qualification to this Agreement shall
be of no force or effect and shall not be binding upon either Party hereto unless made in
writing and signed by both Parties. Nothing herein shall limit or restrict the Parties from
entering into any subsequent agreements relating to the subject matter of this
Agreement.
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WAIVER
19. The failure of any Party to this Agreement to enforce at any time any of the provisions of
this Agreement or any of its rights in respect thereto or to insist upon strict adherence to
any term of this Agreement shall not be considered to be a waiver of such provision,
right or term or in any way to affect the validity of this Agreement or deprive the
applicable Party of the right thereafter to insist upon strict adherence to that term or any
other term of this Agreement. Any waiver by any Party of the performance of any of the
provisions of this Agreement shall be effective only if it is in writing and signed by a duly
authorized representative of such Party.
HEADINGS
20. The headings in this Agreement are solely for convenience or reference and shall not
affect the interpretation nor be deemed to define, limit or construe the contents of any
provision of this Agreement.
SEVERABILITY
21. If any provision of this Agreement is determined by a Court of competent jurisdiction or
any administrative tribunal to be illegal or beyond the power, jurisdiction or capacity of
any Party bound hereby, such provision may be severed from this Agreement and the
remainder of this Agreement shall continue in full force and effect provided both Parties
agree whereby they shall negotiate in good faith to amend this Agreement in order to
implement the intentions as set out in the severed portion and in this Agreement.
IN WITNESS WHEREOF the Parties hereto have hereunto affixed their corporate seals duly
attested by the hands of their proper signing officers in that behalf.
SIGNED, SEALED AND DELIVERED
SKYLINE UTILITY SERVICES INC.
Name:
Title G �C
c/s
Name:
Title:
I/We have authority to bind the corporation.
[DHP 00368758 15]
THE CORPORATION OF THE TOWNSHIP
OF ORO- MEDONTE
Robi Dunn, Chie nistrative Officer
SCHEDULE "A"
LIST OF USERS
Development Name
Assessment Roll #
# of Units /Lots
Carriage Hills Phase 1
4346- 010 - 002 -03550
52 units
Carriage Hills Phase 2
4346- 010 - 002 -03580
52 units
Carriage Hills Phase 3
4346- 010 - 002 -03540
68 units
Carriage Hills Recreation Centre
4346- 010 - 002 -03550
12 units
Carriage Ridge Phase 4
4346- 010 - 002 -03320
78 units
Carriage Ridge Recreation Centre
4346- 010 - 002 -03320
8 units
Horseshoe Resort
4346- 010 - 002 - 03500 -0000
80 units
Horseshoe Resort
4346- 010 - 002 - 03501 -0000
102 units
Horseshoe Lodges
4346- 010 - 002 -03502
40 units
Landscapes Phase 1 (Plan M -741)
4346- 010 - 002 -21700
66 lots
4346- 010- 002 -21702
4346- 010- 002 -21704
4346- 010- 002 -21706
4346- 010- 002 -21708
4346- 010- 002 -21710
4346- 010- 002 -21712
4346- 010- 002 -21716
4346- 010- 002 -21718
4346- 010- 002 -21720
4346- 010- 002 -21722
4346- 010- 002 -21724
4346- 010- 002 -21726
4346- 010- 002 -21728
4346- 010- 002 -21730
4346- 010- 002 -21732
4346- 010- 002 -21734
4346- 010- 002 -21736
4346- 010- 002 -21738
4346- 010- 002 -21740
4346- 010- 002 -21742
4346- 010- 002 -21744
4346- 010- 002 -21746
4346- 010- 002 -21748
4346- 010- 002 -21750
4346- 010- 002 -21752
4346- 010- 002 -21754
4346- 010- 002 -21758
4346- 010- 002 -21760
4346- 010- 002 -21762
4346- 010- 002 -21764
[DHP 00368758 151 10
[DHP 00368758 15] 11
4346- 010- 002 -21766
4346- 010- 002 -21768
4346- 010- 002 -21770
4346- 010- 002 -21774
4346- 010- 002 -21776
4346- 010- 002 -21778
4346- 010- 002 -21780
4346- 010- 002 -21782
4346- 010- 002 -21784
4346- 010- 002 -21786
4346- 010- 002 -21788
4346- 010- 002 -21790
4346- 010- 002 -21792
4346- 010- 002 -21794
4346- 010- 002 -21798
4346- 010- 002 -21800
4346- 010- 002 -21802
4346- 010- 002 -21804
4346- 010- 002 -21806
4346- 010- 002 -21808
4346- 010- 002 -21810
4346- 010- 002 -21812
4346- 010- 002 -21814
4346- 010- 002 -21816
4346- 010- 002 -21818
4346- 010- 002 -21820
4346- 010- 002 -21822
4346- 010- 002 -21826
4346- 010- 002 -21828
4346- 010- 002 -21830
4346- 010- 002 -21832
4346- 010- 002 -21834
4346- 010- 002 -21836
4346- 010- 002 -21838
4346- 010- 002 -21840
HV Lands Phase 2A (Plan M -981)
4346- 010 - 002 -21842
16 lots
4346- 010- 002 -21844
4346- 010- 002 -21846
4346- 010- 002 -21848
4346- 010- 002 -21850
4346- 010- 002 -21852
4346- 010- 002 -21854
4346- 010- 002 -21856
4346- 010- 002 -21858
4346- 010- 002 -21860
4346- 010- 002 -21862
4346- 010- 002 -21864
4346- 010- 002 -21866
4346- 010- 002 -21868
4346- 010- 002 -21870
4346- 010- 002 -21872
[DHP 00368758 15] 11
r
Heights of Horseshoe Townhouses — 4346- 020 - 010 -00411 24 units
Phase 1 4346- 020 - 010 -00412
4346- 020 - 010 -00413
4346- 020 - 010 -00414
4346- 020 - 010 -00415
4346- 020 - 010 -00416
4346- 020 - 010 -00417
4346- 020 - 010 -00418
4346- 020 - 010 -00419
4346- 020 - 010 -00420
4346- 020 - 010 -00421
4346- 020 - 010 -00422
4346- 020 - 010 -00423
4346- 020 - 010 -00424
4346- 020 - 010 -00425
4346- 020 - 010 -00426
4346- 020 - 010 -00427
4346- 020 - 010 -00428
4346- 020 - 010 -00429
4346- 020 - 010 -00430
4346- 020 - 010 -00431
4346- 020 - 010 -00432
4346- 020 - 010 -00433
4346- 020 - 010 -00434
[DHP 00368758 151
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