2021-115 By-law to amend By-law 2014-075 being a By-law to Authorize the Execution of an Agreement between the Township of Oro-Medonte and Skyline Utility Services Inc with respect to Horseshoe Valley ResortThe Corporation of the Township of Oro-Medonte
By-law No. 2021-115
A By-law to amend By-law 2014-075, being A By-law to Authorize the Execution of
an Agreement between 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 Council of The Corporation of the Township of Oro-Medonte did
enact By-law 2014-075, Being a By-law to Authorize the Execution of an Agreement
between 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, on the 215' day of May, 2014;
And Whereas Council of The Corporation of the Township of Oro-Medonte and Skyline
Utility Services Inc. deems it necessary to enter into an amending Agreement;
Now Therefore the Council of the Township of Oro-Medonte hereby enacts as follows:
That the Mayor and Clerk are hereby authorize to execute the Assignment and
Assumption Agreement and Consent to Assignment of Agreement dated October
2021 for the Municipal Capital Facility Agreement, said agreement attached
hereto as Schedule "A" and forming part of this by-law.
This by-law shall take effect on the final passing thereof.
By-law read a First, Second and Third time, and Passed this 29t' day of October,
2021.
The Corporation of the Township of Oro-Medonte
Mayor, H.S. ghes
Cie , Y. Aubichon
schedule JK - to 9y-LAW No. 43M - "5
ASSIGNMENT AND ASSUMPTION AGREEMENT
and
CONSENT TO ASSIGNMENT OF AGREEMENT
This Agreement and Consent are made as of theo2Q day ofOebk (, 2021,
AMONG:
SKYLINE INVESTMENTS INC.,
a corporation incorporated under the laws of the Province of Ontario
(hereinafter called the "Assignor")
OF THE FIRST PART;
- and -
HSV GP INC.,
a corporation incorporated under the laws of the Province of Ontario,
acting as general partner of HSV LIMITED PARTNERSHIP, a limited
partnership formed under the laws of the Province of Ontario
(hereinafter called the "Assignee")
- and -
THE TOWNSHIP OF ORO-MEDONTE,
(hereinafter called the 'Township")
OF THE SECOND PART;
OF THE THIRD PART;
WHEREAS the Township and the Assignor entered into a Municipal Capital Facility
Agreement dated May 21, 2014 ("Municipal Capital Facility Agreement'), a copy of which is
attached as Schedule "A";
AND WHEREAS the Township and Skyline Utility Services Inc. (predecessor in interest to the
Assignor) amended the Municipal Capital Facility Agreement on November 15, 2015 (the
"Amendment"), a copy of which is attached as Schedule 'B";
AND WHEREAS the Assignee has agreed to purchase the WWTP from the Assignor and/or
one of its affiliates, which purchase is expected to be completed on or around November 1, 2021;
AND WHEREAS the Assignor and the Assignee have requested that the Township agree to the
assignment of the Municipal Capital Facility Agreement and the Amendment, 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 same as
the Effective Date for the Assignment and Assumption Agreement and Consent to
Assignment of Agreement between the Assignor, the Assignee and the Township for the
Municipal Responsibility Agreement and the 2008 Assignment and Assumption
Agreement and Consent to Assignment of Agreement, a copy of which is attached as
Schedule "C" (the "Effective Date').
3. Assignment and Assumption. The Assignor hereby assigns, transfers, sets over and
conveys its interest in the Municipal Capital Facility Agreement and the Amendment 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 as of the Effective Date, and covenants and agrees to
assume all of the obligations of the Assignor under the Agreement arising with respect to
the period from and after the Effective Date, and covenants to perform such obligations,
from and after the Effective Date.
4. Assignor's Representations. The Assignor represents and warrants in favour of the
Assignee 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, power and authority to enter
into and perform its obligations under the Municipal Capital Facility Agreement,
the Amendment 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 Assignor.
5. Assignee's Representations. The Assignee hereby represents and warrants in favour of
the Assignor and the Township that:
(a) it is a corporation formed, validly existing and in good standing under the laws of
the Province of Ontario, acting as general partner of HSV Limited Partnership, a
limited partnership formed, 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 the Municipal Capital Facility Agreement, the
Amendment and this Agreement and Consent;
2
(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; and
(c) on the Effective Date it will be the legal and beneficial owner of the WWTP.
6. Township's Consent. The Township hereby consents to the transfer of the Municipal
Capital Facility Agreement and the Amendment from the Assignor to the Assignee as and
from the Effective Date, subject to the following terms and conditions:
(a) 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 assignment of
the Municipal Capital Facility Agreement and the Amendment and except for any
amendments to the Municipal Capital Facility Agreement and the Amendment
agreed to by all of the parties hereto.
7. Township's Representations and Covenants. The Township hereby acknowledges,
covenants and agrees with the Assignor and Assignee as follows:
(a) the Township 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 and Consent;
(b) it has duly authorized the execution and delivery of this Agreement and Consent
and this Agreement and Consent constitute a legal, valid and binding obligation of
the Township, enforceable against it in accordance with the 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 and Consent,
including any approval required pursuant to the Ontario Land Tribunal Act, 2021,
S.O. 2021, c. 4, Sched. 6, and it has or will enact any bylaws give effect to this
Agreement and Consent; and
(d) the Township hereby releases the Assignor from its obligations under the
Municipal Capital Facility Agreement and Amendment arising with respect to the
period from and after the Effective Date.
8. Acknowledgments and Amendments.
(a) The parties acknowledge and agree that the Assignor has provided the Township
with a letter of credit in the amount of $515,896 in accordance with section 6 of
the Municipal Capital Facility Agreement and Amendment ('7 eter of
Credit'). The parties agree that the Assignor will leave the Letter of Credit in
place from and after the Effective Date to be available for use by the Township in
accordance with the Municipal Capital Facility Agreement and the Amendment,
3
for a period of time not to exceed 65 days after the Effective Date, at which time
the Assignee shall provide the Township with a replacement letter of credit in the
amount of $515,896 in substantially the same form, or shall have deposited with
the Township cash in the amount of $515,896, in either case, as replacement
financial assurance, at which time, the Township shall promptly return the
Assignor's Letter of Credit to the Assignor. The Township acknowledges and
agrees that if the Assignee deposits cash with the Township as replacement
financial assurance pursuant hereto, such cash, plus any interest earned by the
Township on such cash deposit, shall be returned promptly to the Assignee upon
the provision of a replacement letter of credit by the Assignee in the amount of
$515,896 in substantially the same form. If the Assignor's Letter of Credit is not
replaced or if cash in the amount of $515,896 is not provided within 65 days
following the Effective date, the Township maintains the right to draw upon the
Assignor's Letter of Credit in accordance with the Municipal Capital Facility
Agreement and the Amendment if necessary until such time as the Assignor's
Letter of Credit is replaced by either a letter of credit from the Assignee or cash in
the same amount.
(b) Section 2 of the Municipal Capital Facility Agreement is hereby deleted because
it is spent.
(c) Section 12 of the Municipal Capital Facility Agreement is amended by deleting
therefrom the notice information for Skyline and inserting instead the following
notice information for the Assignee:
HSV GP Inc.
1101 Horseshoe Valley Road Comp. 10,
RR # 1
Barrie, Ontario, Canada
L4M4Y8
Attention: VP Operations and Development
(d) The parties confirm and agree that all other terms of the Municipal Capital
Facility Agreement and Amendment remain in full force and effect, unamended.
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 Capital Facility Agreement and Amendment.
(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.
M
(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 Capital Facility Agreement and
Amendment 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 pemlitted assigns.
IN WITNESS WHEREOF the parties hereto have executed this Agreement and
Consent as of the date above first written.
SKYLINE INVESTMENTS INC.
(Assignor)
Per:
Name: RobertWaxman
Title: CFO
Per:
Name:
Title:
I/We have the authority to bind the Corporation.
5
HSV GP INC., acting as general partner of
HSV LIMITED PARTNERSHIP
(Assignee)
Per: k� - J
Name: WeFrmj
Title: Prts'14
I have the authority to bind the Corporation.
THE TOWNSHIP OF ORO-MEDONTE
(Township)
Per:
Name:
Title:
Per:
Name:
Title:
I/We have the authority to bind the
Corporation.
2
HSV GP INC., acting as general partner o1
HSV LIMITED PARTNERSHIP
(Assignee)
Per:
Name:
Title:
I have the authority to bind the Corporation.
THE TOWNSHIP OF ORO-MEDONTE
(Township)
Per:
Name: ,S.Ny1.es
Title: I�(ii'U, �� "0 • D _
Per:•
Nam yyvohr2 d�nrc�or
Title: C- ert;
I/We have the authority to bind the
Corporation.
T
SCHEDULE "A"
MUNICIPAL CAPITAL FACILITY AGREEMENT
See attached.
MUNICIPAL CAPITAL FACILITY AGREEMENT
THIS AGREEMENT made this of I day of May 2014.
BETWEEN:
SKYLINE UTILITY SERVICES INC.
("Skyline")
-and -
- THE 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 ('0WWTP") 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;
[DHP 00368758 151
(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;
[DHP 00368758 151 2
(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 Township for a nominal consideration of
ONE DOLLAR ($1.00), the receipt and sufficiency whereof is hereby
acknowledged by the Township;
(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
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
PH 00368758153 4
(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.
[DHP 00368758 151
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 that
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.
[DHP 00368758 151
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.
1�
Name: M,
mot t' S,nyc�
Title /G
c/s
Name:
Title:
I/We have authority to bind the corporation.
IDHP 00368758 151
THE CORPORATION OF THE TOWNSHIP
OF ORO-MEDONTE
r�
4K.S. Hughes,
Robi i unn, Chief A�—ministrative Officer
Development Name
Carriage Hills Phase 1
Carriage Hills Phase 2
Carriage Hills Phase 3
Carriage Hills Recreation Centre
Carriage Ridge Phase 4
Carriage Ridge Recreation Centre
Horseshoe Resort
Horseshoe Resort
Horseshoe Lodges
Landscapes Phase 1 (Plan M-741)
SCHEDULE"A"
LIST OF USERS
Assessment Roll # # of Units/Lots I
4346-010-002-03550
52
units
4346-010-002-03580
52
units
4346-010-002-03540
68
units
4346-010-002-03550
12
units
4346-010-002-03320
78
units
4346-010-002-03320
8
units
4346-010-002-03500-0000 80 units
4346-010-002-03501-0000 102 units
4346-010-002-03502 40 units
4346-010-002-21700 66lots
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
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
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 151 11
16 lots
Heights of Horseshoe Townhouses — 4346-020-010-00411
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 12
24 units
SCHEDULE"B"
AMENDMENT
See attached.
AMENDING AGREEMENT
Wou Qw.\o -e r
THIS AGREEMENT made this �i a day of Attgest; 2015.
BETWEEN:
SKYLINE UTILITY SERVICES INC.
("Skyline")
-and-
THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE
('Township")
WHEREAS:
(a) Skyline and the Township entered into a Municipal Capital Facility Agreement dated May
21, 2014 (the "Agreement') pursuant to section 110 of the Municipal Act, 2001, S.O.
2001, c. 25;
(b) Skyline and the Township seek to update the list of Users who are provided sewage
services from the WWTP as set out in Schedule "A";
(c) Skyline and the Township have agreed to modify Schedule "A";
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:
1. Prior Agreement
That except to the extent that the provisions may be expressly or by necessary
implication be modified by the provisions of this Amending Agreement, all of the terms
and conditions of the Agreement will remain in full force and effect.
2. Revised Provisions
That Schedule "A" of the Agreement, entitled "List of Users", is deleted in its entirety and
is replaced by the Schedule "A" as attached to this Amending Agreement.
-2-
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.
V '/ l c/s
Name: Michael Sneyd
Title: Chief Executive Officer
I have authority to bind the corporation.
THE CORPORATION OF THE TOWNSHIP
OF ORO-MEDONTE
1<Z
Development Name
I
Carriage Hills Phase 1
Carriage Hills Phase 2
Carriage Hills Phase 3
Carriage Hills Recreation Centre
Carriage Ridge Phase 4
Carriage Ridge Recreation Centre
Horseshoe Resort
Horseshoe Resort
Horseshoe Lodges
Landscapes Phase 1(Plan M-741)
SCHEDULE"A"
LIST OF USERS
Assessment Roll #
4346-010-002-03550
4346-010-002-03580
4346-010-002-03540
4346-010-002-03550
4346-010-002-03320
4346-010-002-03320
4346-010-002-03500-0000
4346-010-002-03501-0000
4346-010-002-03502
4346-010-002-21700
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
# of Units/Lots
52 units
52 units
68 units
12 units
78 units
8 units
80 units
102 units
40 units
66 lots
-4-
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 16lots
4346-010.002-21844
43415-010-002-21846
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
-5-
Heights of Horseshoe Townhouses — 4346-020-010-00411
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
Horseshoe Ridge 3A 434601000216421
434601000216422
434601000216423
434601000216424
434601000216425
434601000216426
434601000216427
434601000216428
434601000216429
434601000216430
434601000216431
434601000216432
434601000216433
434601000216434
434601000216435
434601000216436
434601000216437
434601000216438
434601000216439
434601000216440
434601000216441
434601000216442
434601000216443
434601000216444
434601000216445
434601000216446
434601000216447
434601000216448
434601000216449
434601000216450
24 units
57 lots
m
434601000216451
434601000216452
434601000216453
434601000216454
434601000216455
434601DO0216456
434601DO0216457
434601000216458
434601000216459
434601000216460
434601000216461
434601000216462
434601000216463
434601000216464
434601000216465
434601000216466
434601000216467
434601000216468
434601000216469
434601000216470
434601000216471
434601000216472
434601000216473
434601000216474
434601000216475
434601000216476
434601000216477
434601000216478 9 units
Blk 58- Bldg G, Units 54, 55, 56
Blk 58- Bldg H, Units 57, 58, 59
Blk 58- Bldg I, Units 60, 61 & 62
9 units
434601000216479
Blk 59- Bldg A, Units 9, 10, 11
Blk 59- Bldg B, Units 12, 13, 14
Blk 59- Bldg C, Units 15, 16, 17
9 units
434601000216480
Blk 60- Bldg D, Units 18, 19, 20
Blk 60- Bldg E, Units 21, 22, 23
Blk 60- Bldg F, Units 24, 25, 26
434601000216481 3 lots
434601000216482
434601000216483
23653955.1
SCHEDULE"C"
ASSIGNMENT AND ASSUMPTION AGREEMENT AND CONSENT TO ASSIGNMENT
OF AGREEMENT BETWEEN THE ASSIGNOR, THE ASSIGNEE AND THE
TOWNSHIP FOR THE MUNICIPAL RESPONSIBILITY AGREEMENT AND THE 2008
ASSIGNMENT AND ASSUMPTION AGREEMENT AND CONSENT TO ASSIGNMENT
OF AGREEMENT
See attached.
W SLEGAL\074439\00038\28787743v]
ASSIGNMENT AND ASSUMPTION AGREEMENT
and
CONSENT TO ASSIGNMENT OF AGREEMENT
This Agreement and Consent are made as of the day of 2021,
AMONG:
SKYLINE INVESTMENTS INC.,
a corporation incorporated under the laws of the Province of Ontario
(hereinafter called the "Assignor")
OF THE FIRST PART;
and -
HSV GP INC.,
a corporation incorporated under the laws of the Province of Ontario,
acting as general partner of HSV LIMITED PARTNERSHIP, a limited
partnership formed under the laws of the Province of Ontario
(hereinafter called the "Assignee")
and -
THE TOWNSHIP OF ORO-MEDONTE,
(hereinafter called the 'Township")
OF THE SECOND PART;
OF THE THIRD PART;
WHEREAS the Township and Azurix North America (Canada) Corp. have entered into an
agreement dated September 30, 2001 (the "Municipal Responsibility Agreement') in respect of
the construction and operation of certain sewage treatment facility. A copy of said Municipal
Responsibility Agreement is Schedule "A" to the 2008 Assignment Agreement, defined below
and 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 American Water Canada
Corp.;
AND WHEREAS American Water Canada Corp., the Assignor and the Township have entered
into an agreement dated July 11, 2008 to transfer American Water Canada Corp's interest in the
Municipal Responsibility Agreement to Skyline Utility Services Inc. (predecessor in interest to
the Assignor) (the "2008 Assignment Agreement'), a copy of which is attached as Schedule
"A";
AND WHEREAS the Assignee has agreed to purchase the Lands and Facility from the Assignor
and/or one of its affiliates, which purchase is expected to be completed on or around November
1, 2021;
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:
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 to the Assignee (the 'Effective Date').
3. Assignment and Assumption. The Assignor hereby assigns, transfers, sets over and
conveys its interest in the Municipal Responsibility Agreement and the 2008 Assignment
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 as of the Effective Date, and covenants
and agrees to assume all of the obligations of the Assignor under the Agreement arising
with respect to the period from and after the Effective Date, and covenants to perform
such obligations, from and afterthe 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 Representations. The Assignee hereby represents and warrants in favour of
the Assignor and the Township that:
(a) it is a corporation formed, validly existing and in good standing under the laws of
the Province of Ontario, acting as general partner of HSV Limited Partnership, a
limited partnership formed, 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 the Municipal Responsibility Agreement, the
2008 Assignment Agreement and this Agreement and Consent;
2
(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; and
(c) on the Effective Date it will be the legal and beneficial owner of the Facility.
6. Township's Consent. The Township hereby consents to the transfer of the Facility and to
the assignment of the Municipal Responsibility Agreement and the 2008 Assignment
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 or the Municipal Responsibility 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 and the
2008 Assignment Agreement and except for any amendments to the Municipal
Responsibility Agreement and the 2008 Assignment Agreement agreed to by all
of the parties hereto.
7. Township's Representations and 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;
(b) 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 and Consent,
including any approval required pursuant to the Ontario Land Tribunal Act, 2021,
S.O. 2021, c. 4, Sched. 6, and it has or will enact any bylaws give effect to this
Agreement and Consent;
(c) the Township repeats and restates the covenants and agreements contained in
sections 4.1(a) to and including (c) of the Municipal Responsibility Agreement;
and
(d) the Township hereby releases the Assignor from its obligations under the
Municipal Responsibility Agreement and the 2008 Assignment Agreement arising
with respect to the period from and after the Effective Date.
S. 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 of the Municipal Responsibility Agreement.
3
(b) The parties acknowledge and agree that the existing Certificate of Approval
issued by the Ministry in respect of the Facility can only be amended to denote
the Assignee as the holder of the Certificate of Approval once title to the Facility
has been transferred to the Assignee; and the Assignor and Assignee hereby
undertake, covenant and agree to use commercially reasonable efforts to amend
the Certificate of Approval as aforesaid forthwith after closing of the purchase
and sale of the Lands and to provide the Township with a copy of any
acknowledgement or confirmation by the Ministry with respect to the assignment
of the Certificate of Approval forthwith upon receipt of same.
(c) 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 8(d) of the 2008 Assignment Agreement
('Letter of Credit'). The parties agree that the Assignor will leave the Letter of
Credit in place from and after the Effective Date to be available for use by the
Township in accordance with the Municipal Responsibility Agreement and the
2008 Assignment Agreement, for a period of time not to exceed 65 days after the
Effective Date, at which time the Assignee shall provide the Township with a
replacement letter of credit in the amount of $363,600 in substantially the same
form, or shall have deposited with the Township cash in the amount of $363,600,
in either case, as replacement financial assurance, at which time, the Township
shall promptly return the Assignor's Letter of Credit to the Assignor. The
Township acknowledges and agrees that if the Assignee deposits cash with the
Township as replacement financial assurance pursuant hereto, such cash, plus any
interest earned by the Township on such cash deposit, shall be returned promptly
to the Assignee upon the provision of a replacement letter of credit by the
Assignee in the amount of $363,600 in substantially the same form. If the
Assignor's Letter of Credit is not replaced or if cash in the amount of $363,600 is
not provided within 65 days following the Effective date, the Township maintains
the right to draw upon the Assignor's Letter of Credit in accordance with the
Municipal Responsibility Agreement and the 2008 Assignment Agreement if
necessary until such time as the Assignor's Letter of Credit is replaced by either a
letter of credit from the Assignee or cash in the same amount.
(d) The parties confirm and agree that the Assignee, as owner of the Lands and
Facility, will obtain insurance to its interest in and responsibility with respect of
the Facility and Lands, which policies 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, inter alia, the Township.
(e) Section 15.1 of the Municipal Responsibility Agreement is hereby amended by
deleting therefrom the notice information for the Assignor and inserting instead
the following notice information for the Assignee:
Ll
HSV GP Inc.
1101 Horseshoe Valley Road Comp. 10,
RR # 1
Barrie, Ontario, Canada
L4M4Y8
Attention: VP Operations and Development
(f) The parties confirm and agree that all other terms of the Municipal Responsibility
Agreement and the 2008 Assignment Agreement remain in full force and effect,
unamended.
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 and the 2008
Assignment 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 Municipal Responsibility Agreement and
the 2008 Assignment 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.
IN WITNESS WHEREOF the parties hereto have executed this Agreement and
Consent as of the date above first written.
5
SKYLINE INVESTMENTS INC.
(Assignor)
Per:
Name:
Title:
Per:
Name:
Title:
I/We have the authority to bind the Corporation.
HSV GP INC., acting as general partner of
HSV LIMITED PARTNERSHIP
Per:
(Assignee)
Name:
Title:
I have the authority to bind the Corporation.
0
THE TOWNSHIP OF ORO-MMONTE
(Township)
Per:
Name:
Title:
Per:
Name:
Title:
I/We have the authority to bind the
Corporation.
SCHEDULE"A"
2008 ASSIGNMENT AGREEMENT
See attached.
W S LEGAL\07443 9\0003 8\2 873 809 1 v3
ASSIGNMENT AND ASSUMPTION AGREEMENT
and
CONSENT TO ASSIGNMENT OF AGREEMENT
This Agreement and Consent are made as of the P" 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;
irFr1rom
SKYLINE UTILITY SERVICES INC.,
a corporation incorporated under the laws of the Province of Ontario
(hereinafter called the "Assignee")
-and-
THE TOWNSHIP OF ORO-MEDONTE,
(hereinafter called the "Township")
OF THE SECOND PART;
OF THE THIRD PART;
WHEREAS the Township and Azurix North America (Canada) Corp. have entered into an agreement
dated September 30, 2001 (the "Municipal Responsibility AgreemenP') 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
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").
Assignment and Assumption. The Assignor hereby assigns, transfers, sets over and conveys its
interest in the Municipal Responsibility 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 Representations. The Assignor repeats and restates the representations and
warranties contained in sections 2.1(a) and (b) of the Municipal Responsibility Agreement.
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, power and authority to enter into and
perform its obligations under the Municipal Responsibility Agreement and this
Agreement and Consent;
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;
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 of the 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.
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 good and valuable consideration, the receipt and sufficiency ofwhich
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 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 Municipal Responsibility Agreement
(collectively, the "Liabilities"), which Liabilities are hereby assumed by the Assignee.
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 and the Adult Resort are hereby deleted mutatis mutandis.
c) The parties acknowledge and agree that the existing Certificates ofApproval 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 word "Developer" and inserting in its stead the words "Assignee".
f) The parties confine and agree that the Assignor, as operator of the Facility, and the
Assignee, as owner of the Lands and Facility, will both obtain insurance to cover their
respective interest in and responsibility with respect of the Facility and 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, inter alia, the Township.
g) The Municipal Responsibility Agreement is hereby amended by deleting therefrom
section 14.1.
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 notice information for 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.
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 Towrship agree that amendments to this Agreement mayhave 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 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.
IN WITNESS WHEREOF the parties hereto have executed this Ageement and Consent as of the date
above first written.
AMERICAN W ER C A RP.,
(Assignor)
Per:
itle: I%,'t i jiPfr J F
Per:
Name:
Title:
1/We have the authority to bind the Corporation.
SKYLINE UTILITY SERVICES INC.
(Assignee)
Per: _
Name:
Title:
I have the authority to bind the Corporation.
THE TOWNSHIP OF ORO-MEAONTE
(Township)
Per:
Name:
Title:
Per:
Name:
Title:
I/We have the authority to bind the Corporation.
P
IN WITNESS WHEREOF the parties hereto have executed this Agreement and Consent as of the date
above first written.
AMERICAN WATER CANADA CORP.,
Per:
Name:
Title:
(Assignor)
Per:
Name:
Title:
VWe have the authority to bind the Corporation.
SKYLINE UTILITY SERVICES INC.
(Assignee)
Per:
Name: RR r* )/mq r✓J
Title: C460
I have the authority to bind the Corporation.
THE TOWNSHIP OF ORO-MEDONTE
(Township)
Per
Name:
Title:
Per:
Name:
Title:
I/We have the authority to bind the Corporation.
IN WITNESS WHEREOF the parties hereto have executed this Agreement and Consent as of the date
above first written.
AMERICAN WATER CANADA CORP.,
Per:
Name:
Title:
Per:
(Assignor)
Name:
Title:
I/We have the authority to bind the Corporation.
SKYLINE UTILITY SERVICES INC.
(Assignee)
Per:
Name:
Title:
I have the authority to bind the Corporation.
THE TOWNSHIP OF ORO-MEDONTE
(Township)
Pe
ame:H.0 Hu es
?tIyo
Per
aglas Irwin
e
I/We have the authority to bind the Corporation.
SCHEDULE A
See attached.
tl
THIS AGREEMENT made this 3O day of September, 2001. taosrot-s
BETWEEN:
THE TOWNSHIP OF ORO MEDONTE
(herein called the "Township")
OF -THE FIRSTPART
-and -
AZURIX NORTH AMERICA (CANADA) CORP.
(herein called "Azurix")
OF THE SECOND PART
WHEREAS Azurix owns, operates and manages water and wastewater assets, offers
water -related services and develops and manages water resources worldwide;
AND WHEREAS Azurix is the owner of certain lands described and depicted in
Schedule "A" hereto (the "Lands"), on which is located a sewage treatment facility described in
Schedule "B" hereto (the "Original Facility");
AND WHEREAS Horseshoe Resort Corporation (the "Developer") owns certain lands
in close proximity to the Lands, on which the Developer has developed a resort, including hotel,
restaurant and condominium facilities (the "Development") and intends to further develop a
residential site entailing an adult lifestyle facility (the "Adult Resort");
AND WHEREAS Azurix is currently providing sewage treatment to the Development
through the Original Facility and the Developer requires the service to the Development to be
increased, as a result of the addition of the Adult Resort;
AND WHEREAS Azurix and the Developer have entered, or will enter, into an
agreement (the "Contract") for the construction of, inter alia, an addition to the Original Facility
as described and depicted in Schedule "C" hereto (the "Addition") and the operation,
maintenance and repair of, the Original Facility and the Addition (the Original Facility and the
Addition, collectively, the "Facility");
AND WHEREAS the Township will only support the further development of the Adult
Resort based on the construction and operation of the Addition and the continued operation of
the Facility by Azurix;
AND WHEREAS the Ministry has issued a Certificate of Approval for the Facility, a copy
of which is attached hereto as Schedule "D".
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) "Arbitration Act" means the Arbitration Act, S.O. 1991, c.17, as amended or
replaced from time to time;
b) "Certificate of Approval' means an approval issued under the authority of the
Ontario Water Resources Act, the Environmental Protection Act, the Ministry or
other applicable provincial legislation for the Facility, or a portion thereof, as it
may be amended, revised or reissued, and any other applicable provincial law
relating to the operation or functioning of the Facility;
c) "Condominium Act" means the Condominium Act 1998, S.O. 1998, c. 19, as
amended or replaced from time to time;
d) "Construction Lien Act" means the Construction Lien Act, R.S.O. 1990, c.
C.30, as amended or replaced from time to time;
e) "Director" means the director appointed by the Minister of Environment under
the Environmental Protection Act or the Ontario Water Resources Act;
f) "End Users" shall mean those residents of the Adult Resort who will receive and
pay for wastewater services from the Facility, pursuant to a service agreement
with the Developer;
g) "Environmental Protection Act' means the Environmental Protection Act,
R.S.O. 1990, c. E.19, as amended or replaced from time to time;
h) "Letter of Credit' means the irrevocable letter of credit in the form attached
hereto as Schedule "E" and in the amount of $363,000 obtained by Azurix and
issued in favour of the Township to secure the operation, maintenance and
management of the Facility in accordance with the terms and conditions of this
Agreement;
i) "Maintenance Deficiency" means any breakdown or malfunction of the
equipment or structure of the Facility, in excess of twenty thousand dollars
($20,000.00) and which is not considered to be an Operational Deficiency;
j) "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;
k) "Municipal Act' means the Municipal Act, R.S.O. 1990, c. M.45, as amended or
replaced from time to time;
1) "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;
PA
m) "Operational Deficiency" means any operational breakdown or malfunction of
the Facility that could cause the Facility not to comply with the requirements of
the Certificate of Approval and/or is a detriment to public health or the
environment;
n) "Planning Act' means the Planning Act, R.S.O. 1990, c. P.13, as amended or
replaced from time to time;
o) "Replacement Costs" means the estimated costs for replacing the
Replacement Parts in any given year, as set out in Schedule "F" hereto;
p) "Replacement Fund Allocation" means that portion of Revenue allocated by
Azurix to be deposited into the Fund in any given year, based on the
Replacement Costs, for the purpose of funding the Replacement Parts;
p) "Replacements Parts" means those mechanical and electrical elements of the
Facility as set out in Schedule "F" hereto, which may from time to time require
repair or replacing;
q) "Revenue" shall mean the monies collected by the Developer from the End
Users for the provision of wastewater services through the operation of the
Facility by Azurix, which shall ultimately be paid to Azurix by the Developer
pursuant to the terms of the Contract; and
r) "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, 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:
Schedule "A"
— Legal description of the Lands
Schedule "B"
— Description of the Original Facility
Schedule "C"
— Description of the Addition
Schedule "D"
— Certificate of Approval for the Facility
Schedule "E"
— Form of Irrevocable Letter of Credit
Schedule "F"
— Reserve Fund Program
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 Azurix 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 Azurix, enforceable
against it in accordance with its terms;
c) it is the legal and beneficial owner of the Lands and the original Facility located
thereon and shall be the legal and beneficial owner of the Addition once
constructed.
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;
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; and
c) no approval, authorization, order or consent of, or declaration, registration or
filing with, any governmental authority is required for the valid execution and
delivery by the Township of this Agreement, except those that have been duly
obtained or made.
ARTICLE 3. DUTIES AND RESPONSIBILITIES OF AZURIX
3.1 Azurix covenants and agrees that it shall:
a) construct the Addition according to current acceptable engineering practices and
operate, maintain, and if necessary, repair and/or replace all or part of the Facility
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 Addition 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 Facility and its operation;
d) replace the financial assurance currently issued in favour,of the Ministry in the
amount of Three Hundred and Sixty Three Thousand Dollars ($363,000), with the
Letter of Credit, acceptable to the Township;
e) not commence any work on the construction of the Addition until it has received a
Certificate of Approval in respect of such construction and the Township's
approval to commence the work, provided that the Township shall act reasonably
and promptly in providing such approval;
f} prepare a contingency plan for sewage haulage in the event of a Deficiency that
results in a type of failure of the Facility that requires haulage of sewage;
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 Facility 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 Facility.
3.2 Azurix acknowledges and agrees that the design and construction of the Addition and
the operating standards of the Facility 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 Azurix
shall not object to or otherwise appeal the imposition of such terms as conditions to any such
approval or Certificate of Approval issued to Azurix.
3.3 Azurix further acknowledges and agrees that all materials to be supplied hereunder with
respect to the Facility 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 Facility, and shall be subject
to the approval of the Township acting reasonably.
3.4 Nothing contained herein shall limit the obligation of Azurix to continue to provide reports
to the Ministry in respect of the Facility, and Azurix 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 Facility, who may
inadvertently call the Township regarding complaints or issues related to the
services provided by Azurix that any such complaints or matters relating to the
service provided by Azurix, should be directed to:[to be determined by Azurix at a
future date];
b) review within fifteen (15) days of receipt all capital expenditure plans prepared
and provided by Azurix in respect of the Facility; and
c) assume responsibility for the operation of the Facility in the event of a default
pursuant to Article 11 herein in which case the Township shall be entitled to call
in and utilize the Letter of Credit and monies from the Fund for purposes of
replacing the Replacement Parts pursuant to Article 7 herein.
ARTICLE 5. THIRD PARTY ENGINEER
5.1 For the purposes of monitoring the Facility and providing comments on and approval of
reports prepared by Azurix, the Township may, in its sole discretion, retain an engineer (the
"Township Engineer") to perform the following:
a) monitor the construction of the Addition by Azurix and provide to the Township a
certificate that the construction of the Addition has been completed in
accordance with the Certificate of Approval;
b) monitor the operation of the Facility 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 Azurix for
any Deficiency which may arise during the term of this Agreement in respect of
the condition or operation of the Facility; and
d) review any and all capital expenditure plans in respect of the Facility prepared by
Azurix and submitted to the Township.
5.2 Azurix 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 seven thousand dollars ($7,000.00) 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 carry over to any subsequent years as a benefit or credit to the Township. Such
amount shall be reimbursed annually up to the agreed amount of seven thousand dollars
($7,000.00).
5.3 Each of the Township and Azurix 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
Azurix.
ARTICLE 6. REPAIR, MAINTENANCE OR REPLACEMENT OF FACILITY
6.1 In the event the Ministry determines that an Operational Deficiency exists Azurix shall
promptly notify the Township in writing (the "Deficiency Notice") of the particulars of such
Operational Deficiency, which Deficiency Notice shall include any order issued by the Ministry to
rectify the Operational Deficiency or Azurix's intended plan of action for rectifying the
Operational Deficiency if ordered to create one by the Ministry (the "Operational Rectification
Plan"), including the minimum and maximum time period in which the Operational Rectification
Plan shall be completed. Azurix shall rectify any such Operational Deficiency in accordance
with the terms of the Operational Rectification Plan and upon completion, shall certify to the
Township that all Operational Deficiencies have been rectified in accordance with the
Operational Rectification Plan.
0
6.2 Notwithstanding any provision contained herein, the obligation of Azurix to provide a
Deficiency Notice does not preclude any obligation it may have to report such Operational
Deficiency to the Ministry or any other authority as required by law, and Azurix shall report the
occurrence of such Operational Deficiency as required by the Ministry or any other authority.
6.3 If Azurix, the Ministry or the Township determines that the Operational Deficiency is of a
type that may cause a material danger to human health, the environment or property, 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 Operational Deficiency.
6.4 In the event Azurix learns of, or the Township determines that a Maintenance Deficiency
exists, Azurix shall promptly notify the Township of the particulars of such Maintenance
Deficiency, which shall include its intended plan of action to rectify such Maintenance Deficiency
(the "Maintenance Rectification Plan") and the minimum and maximum times within which
such Maintenance Rectification Plan shall be completed. Azurix shall rectify such Maintenance
Deficiency in accordance with the terms of the Maintenance Rectification Plan, provided that
such plan has been approved by the Township or the Township Engineer, and upon completion,
shall certify to the Township that the Maintenance Deficiency has been rectified in accordance
with Maintenance Rectification Plan.
6.5 Azurix, at its own cost, shall obtain any and all approvals required under statute or by the
Ministry to rectify the Operational Deficiency or the Maintenance Deficiency or as may be
required pursuant to the Operational Rectification Plan or the Maintenance Rectification Plan,
respectively.
6.6 The Township may seek the assistance of the Director in the event (a) the Township
believes that a Maintenance Deficiency has occurred for which it has not received a
Maintenance Rectification Plan pursuant to section 6.4 herein, or (b) the Township, acting
reasonably, is not satisfied with the terms of the Operational Rectification Plan proposed by
Azurix in respect of a particular Operational Deficiency and the Township and Azurix are unable
to agree upon changes to the Operational Rectification Plan to satisfy the Township's concerns.
The Township may request the Director to make a determination in the case of (a), that an
Maintenance Deficiency has occurred requiring Azurix to prepare an Maintenance Rectification
Plan and rectify the Maintenance Deficiency accordingly, or in the case of (b), any additional
measures or terms that should be included in the Operational Rectification Plan and the manner
in which the rectifications should be completed. The parties acknowledge and agree that the
decision of the Director shall be final and binding and that any requirement imposed by order of
the Director shall be incorporated into the respective rectification plan.
6.7 Azurix shall not add to, alter or extend the Facility without advising and providing the
Township with a copy of any and all such additions, alterations or extensions. In the event
Azurix makes any changes to the Facility, Azurix shall provide to the Township certified updated
.as built" plans.
ARTICLE 7. CAPITAL REPLACEMENT RESERVE FUND
7.1 Azurix and the Township shall be required for the term of this Agreement to enter into an
agreement with the Trustee for the establishment and maintenance of a capital replacement
reserve fund (the "Fund"). The parties hereby acknowledge and agree that Azurix shall
subsidize the Fund throughout the term of this Agreement with the Replacement Fund
Allocation. Azurix hereby covenants and agrees to deposit any and all of the Replacement
Fund Allocation collected by the Developer and received by Azurix into the Fund. Azurix shall
ensure that the monies held by the Trustee in the Fund shall be held in an interest bearing
account, which interest shall be added to the Fund.
7.2 Azurix shall be required to maintain a sufficient amount of monies in the Fund to pay for
the Replacement Costs budgeted for replacing the Replacement Parts in any given year, as set
out in Schedule "F" hereto for the term of this Agreement. The parties acknowledge and agree
that the Replacement Fund Allocation deposited into the Fund in any given year may exceed or
be less than the amount required for the Replacement Costs for such year. The parties further
acknowledge and agree that any surplus of the Replacement 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 Costs for the following years. The parties acknowledge and agree
that under no circumstance shall Azurix be required to pay into the Fund monies other than the
Replacement Fund Allocation.
7.3 Azurix shall annually update the Replacement Costs for the Replacement Parts (the
"updated estimate") of the Facility and provide the Township with a copy of the updated
estimate. In determining the updated estimate, Azurix shall at a minimum take into
consideration, the actual cost paid to replace any Replacement Parts from the preceding year,
the decreased lifespan of any of the Replacement Parts, which may require early replacement,
and any fluctuation in the market for the costs of the Replacement Parts. Azurix hereby
covenants and agrees to negotiate with the Developer any increase to the costs of services
charged to the End Users, which may be required to subsidize any increase in the Replacement
Costs resulting from the updated estimate.
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 changing costs, the updated estimate or other circumstances.
7.5 Each of the parties acknowledges and agrees that Azurix shall notify the Township in
writing of its requirement to replace a Replacement Part(s) and the replacement cost associated
therewith. Upon receipt of any such notice, the Township or the Township Engineer shall
acknowledge in writing its consent to the replacement of such Replacement Part(s) and shall
authorize the Trustee to withdraw from the Fund the amount required to replace such
Replacement Part(s), upon delivery of a receipt by Azurix to the Trustee evidencing the costs of
such Replacement Part(s).
ARTICLE 8. ACCESS TO THE FACILITY
8.1 For purposes of inspecting the Facility on an annual basis, conducting testing of the
Facility from time to time, and in cases of emergency, Azurix hereby agrees to permit and
facilitate the Township and/or the Township Engineer access to the Facility during hours of
operation upon the receipt of reasonable notice by Azurix, provided that notice to Azurix shall
not be required in the case of an emergency necessitating access by the Township and/or the
Township Engineer and further provided that Azurix shall permit and facilitate immediate access
to the Facility in the case of an emergency.
8.2 Azurix hereby grants to the Township all necessary easements for the appropriate
access and egress over and across the Lands for purposes of inspecting the Facility and
reasonable appurtenances thereto pursuant to section 8.1. Azurix 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 Facility.
ARTICLE 9. COLLECTION OF FEES
9.1 The parties hereby acknowledge and agree that as a private service provider, Azunx
shall contract with the Developer, who will be solely responsible for issuing invoices to the End
Users and collecting all fees payable under such invoices. The Township shall not be required
to collect any such fees and shall have no role in the enforcement of remitting fees for services
provided by Azurix.
ARTICLE 10. INSURANCE
10.1 Azurix shall, throughout the term of this Agreement, at its sole cost and expense, take
out and keep in full force and effect in the names of Azurix and the Township, as their
respective interests may appear, the following insurance:
a) insurance on the property of every description and kind owned by Azurix and
located within the Facility in an amount equal to the full replacement cost thereof,
without deduction for depreciation, with coverage for all major perils, including,
fire and standard extended coverage, sprinkler leakages (where applicable),
earthquake, flood and collapse;
b) general liability coverage to a limit of $5,000,000;
c) auto liability insurance coverage to a limit to $5,000,000;
d) professional liability and errors and omissions insurance coverage to a limit of
$5,000,000;
e) environmental impairment liability coverage to a limit of $5,000,000; and
f) umbrella liability coverage to a limit of the value of the full replacement cost of the
Facility;
10.2 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 the operation of the
Facility that fall within the deductible limit are the sole responsibility of Azurix.
10.3 Azurix shall provide to the Township, certificates of insurance evidencing the insurance
obtained fourteen (14) days prior to the date of commencement of the operation of the Facility.
All such policies shall contain an undertaking by the insurers to notify the Township in writing
not less than thirty (30) days prior to any material change, cancellation, failure to review or
termination thereof.
10.4 In the event of default by Azurix to pay the premiums of such insurance, the Township
shall have the right and the authority to pay such premiums on behalf of Azurix, for the purpose
of ensuring the policies remain in effect. Azurix hereby agrees to reimburse the Township for
any such payment made on its behalf.
ARTICLE 11. DEFAULT
11.1 An operating default (an "Operating Default") shall be deemed to have occurred if any
one or more of the following events occur:
a) failure by Azurix to remedy an Operating Deficiency within the timeframe required
by the Ministry or allocated by Azurix to be remedied in the Operational
Rectification Plan pursuant to section 6.1 herein, which timeframe shall include
any extensions granted or agreed to by the Ministry;
b) failure by Azurix or its agents to comply with a condition of an order of approval
issued by the Ministry with respect to the Facility within the timeframe stipulated
by the Ministry, which timeframe shall include any extensions granted or agreed
to by the Ministry; and
c) any act or omission of Azurix or its agents which, in the opinion of the Township,
acting reasonably, causes the operation and maintenance of the Facility by
Azurix to be or become so faulty as to be detrimental to those persons being
served by the Facility;
11.2 In the event of an Operating Default, the parties acknowledge and agree that the Facility
shall be operated and maintained at the discretion of the Ministry and by such persons as the
Ministry may direct. Notwithstanding the foregoing, the Township acknowledges and agrees
that the Ministry may in its discretion direct that Azurix continue as the operator of the Facility
despite the occurrence of an Operating Default and the Township hereby agrees that the
operation of the Facility by Azurix shall continue in accordance with any directives issued by the
Ministry. if the Township is directed to or otherwise assumes the responsibility of operating the
Facility as a result of an Operating Default, it may use the Letter of Credit for the operation or
maintenance of the Facility.
11.3 A default (a "Default') shall be deemed to have occurred if any one or more of the
following events occur:
a) receipt by the Township of notice of a proposed cancellation or non -renewal of
the Letter of Credit, where no replacement letter of credit or financial assurance
has been provided by Azurix three (3) months prior to the cancellation or expiry
of the Letter of Credit;
b) receipt by the Township of notice that Azurix has ceased or threatens to cease to
carry on business, whether such cessation of business be either voluntary or
involuntary;
c) receipt by the Township of notice of the impending insolvency of Azurix;
e) failure by Azurix to meet its obligations to any third party that would affect the
operation of the Facility; and
f) failure by Azurix to remedy an Maintenance Deficiency within the timeframe
allocated by Azurix to be remedied in the Maintenance Rectification Plan
( pursuant to section 6.4 herein, which timeframe shall include any extensions
granted or agreed to by the Township.
10
11.4 In the event of a Default the Township shall give written notice to Azurix of the nature of
the Default, and the timeframe, if applicable, within which Azurix shall be required to remedy the
Default. If Azurix 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, assume
responsibility for the operation of the Facility and use the Letter of Credit, to effect such
assumption of operations. Notwithstanding anything to the contrary, the Township
acknowledges and agrees that it may not be entitled to assume responsibility for the operation
of the Facility in the event of a Default pursuant to section 11.3(c), and that such responsibility
may be determined by a trustee in bankruptcy.
11.5. In the event an Operating Default or a Default continues twenty-four (24) months beyond
the timeframe within which Azurix was required to remedy such default, Azurix shall immediately
upon demand by the Township, transfer ownership of the Lands and the Facility 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 and neither the Township nor Azurix shall have
any further obligation hereunder, with the exception of Azurix's obligation pursuant to Article 13
herein. The transfer referred to herein shall also refer to any interest Azurix may have in the
Letter of Credit 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.
11.6 In the event the Township is required to assume responsibility for operation of the
Facility hereunder, Azurix shall assist and cooperate with the Township and/or its agents with
effecting such assumption of operations, including but not limited to, providing: documentation
and records relevant to the operation of the Facility: employees and/or contractors to assist in
operating the Facility: and unrestricted access to the Facility.
ARTICLE 12. COSTS OF ADMINISTRATION
12.1 Azurix 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 counsel or 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
Azurix for its review and approval as to payment.
ARTICLE 13. INDEMNITY
13.1 Azurix agrees to indemnify and shall keep indemnified and save harmless the Township
from all loss, damage, cost and expense damage, 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 Facility or any matter under this Agreement, whether such loss,
damage, cost or expense damage, claims, demands or actions is sustained by the Township,
Azurix, or their several and respective employees, workmen, servants, agents or councilors or
any other person.
11
ARTICLE 14. TERMINATION
14.1 Unless earlier terminated as a result of an Operating Default or a Default, this
Agreement shall remain in effect until such time as Azurix transfers ownership of the Facility and
the Lands and/or Azurix transfers operation of the Facility to another party and the Agreement
referred to in section 14.2 below is executed.
14.2 Prior to any transfer of ownership or operation of the Facility, Azurix 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 Azurix from effecting any changes in corporate ownership or
structure and continuing its obligations hereunder subsequent to any such change in corporate
ownership or structure.
ARTICLE 15. GENERAL PROVISIONS
15.1 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 2X0
Attention: Township Clerk
Fax: (705) 487-0133
to Azurix at: 100 King Street West
P.O. Box 57159, Jackson Station
Hamilton, ON L8P 4X1
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.
15.2 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.
ivA
Per:
Name:
Title:
15.3 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.
15.4 Time shall be of the essence of this Agreement and of every part hereof and no
extension or variation of this Agreement shall operate as a waiver of this provision. .
15.5 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.
15.6 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.
15.7 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.
15.8 Neither this Agreement nor any provision hereof may be changed, modified, amended or
waived except by written agreement executed by each party hereto.
15.9 This Agreement shall be construed in accordance with, and governed by, the laws of the
Province of Ontario.
15.10 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.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement as of
the date first written above.
THE TOWNSHIP OF ORO MEDONTE
Per:
Name:
Title: Mayor
lv� P0 4 log �fij-
Township Irk
AZURIX NORTH AMERICA
(CANADA) CORP.
Per:
Name:*� "
Title: P `.s i , t c�c
Per:�'��
Name: a i �r�Kts
Title: ` C.
13
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 Medonte), in the County of Simcoe, designated as Part 1 on Plan 51 R-30017,
being Part of the East Half of Lot 2, Concession 3
14
SCHEDULE"B"
DESCRIPTION OF THE ORIGINAL FACILITY
• Design treatment capacity of 405 m3/day (daily average flow basis)
• 300 mm diameter inlet sewer
• Parshall flume for sewage flow measurement
• Two concrete sequencing batch reactor basins, each 14 metres long x 4.57 metres wide
and 5.6 metres deep with a top operating water level of 5 metres. Each SBR basin
includes: a fine bubble aeration system, a motorized effluent decanter and a submersible
waste sludge pump with piping valves and instrumentation
• A covered concrete aerated sludge storage tank 9.25 metres long x 4.57 metres wide
and 5.6 metres high. The aerated sludge storage tank includes a submersible sludge
loading pump, a submersible supernatant pump and coarse bubble air diffusers.
A covered concrete effluent tank with dimensions 9.25 metres long x 4.57 metres wide
and 5.6 metres high. The effluent tank includes two submersible pumps for pumping to
the filters.
• Three exfiltration ponds approximately 25 metres long x 14 metres wide
• A preengineered steel building 18.3 metres long x 9.86 metres wide containing an office,
washroom, electrical room / laboratory, blower room, and filter room.
• The filter system includes two downflow continuous backwash filters each having a
surface area of 1.77 square meters.
• The chemical system includes two 850 gallon polyethylene storage tanks with two
chemical metering pumps, piping and valves.
• The blower room contains three positive displacement blowers each with a capacity of
130 SCFM and 7.5 psig, piping and valves.
The electrical room contains a motor control center for power distribution, a PLC based
control panel, and instruments.
15
SCHEDULE"C"
DESCRIPTION OF THE ADDITION
• Design treatment capacity of 810 m3lday (daily average flow basis)
• A third sequencing batch reactor basin with dimensions to match existing basins (14
metres long x 4.57 metres wide and 5.6 metres deep with a top operating water level of
5 metres)
• Two new positive displacement blowers each with capacity to match existing blowers
(130 SCFM and 7.5 psig)
• A third continuous backwash filter with a minimum surface area of 4.65 mZ (50 sq.ft)
• An inlet automatic fine screen system.
• Two parallel concrete grit removal channels
• A lined earthen sludge storage lagoon with approximate dimensions 12 x 15 metres
16
SCHEDULE"D"
CERTIFICATE OF APPROVAL FOR THE FACILITY
[to be provided once issued by the Ministry]
17
SCHEDULE "E"
FORM OF IRREVOCABLE LETTER OF CREDIT
[see attached]
18
'T THETORONm-DOMiN10N BANK
ICJ Jackson Square
100 King St. IN.
PO Box 57148
Hamilton. ',")ntario L8P 4W9
telephone No. 521-6519
February 7, 1997
Her Majesty the Queen in Right
of Ontario as Represented by
The Minister of the Environment and Energy
135 St. Clair Avenue
Toronto, Ontario
M4V 1P5
Re: Letter of Credit
We hereby authorize you to draw on The Toronto -Dominion Bank,
Jackson Square, 100 King St. West, Hamilton, Ontario for account of
Philip Utilities Management Corporation, an aggregate amount of
THREE HUNDRED AND SIXTY-THREE THOUSAND, SIX HUNDRED DOLLARS AND
00/100 ($363,600.00) of lawful money of Canada available by written
demand for payment.
Pursuant to the request of our customer, Philip Utilities
Management Corporation, we hereby establish and give you an
Irrevocable Letter of Credit in your favour which may be drawn.on
by you at any time and from time to time upon written demand for
payment made upon us by you, which demand we shall honour without
enquiring whether you have a right as between yourself and our said
customer to make such demands, and without recognizing any claim of
our said customer.
This Irrevocable Letter of Credit will continue up to the 7th
day of February, 1998 and will be automatically renewed for one
year on the same terms and conditions including this one for
renewal unless we give you at least 60 days written notice that it
will not be so renewed and you may call for payment on the full
amount outstanding under this Letter of Credit at any time prior to
that date should this Irrevocable Letter of Credit not be renewed.
Partial drawings are permitted.
Any payment made hereunder shall be in favour of the Minister
of Finance of Ontario.
The amount secured by this Irrevocable Letter of Credit may be
reduced from time to time by written notice to the Bank from You-
.... continued
- 2 -
THE MINISTER OF THE ENVIRONMENT AND ENERGY
Any notice under the previous paragraph or any demand
hereunder may be made by you or by the Assistant Deputy Minister,
Regional Operations Division; the Assistant Deputy Minister,
Corporate Resources Division; or such other Director as you from
time to time authorize in writing.
Your claim under this Letter of Credit must be in writing
addressed to The Toronto -Dominion Bank, Jackson Square, 100 Ring
St. West, Hamilton, Ontario, quoting our Irrevocable Letter of
Credit #9-315420 dated the 7th day of February, 1997.
We herby agree with you that demands made in compliance with
the terms of.this credit shall be duly honoured upon presentation
at this Bank.
This Irrevocable Letter of Credit is issued subject to the
Uniform Customs and Practice for Documentary Credits, 1993 Revision
ICC Publication No. 500.
THE TORONTO-DOMINION BANK
Ruth St. Aubin
Non Negotiable
Securities Officer
THE TORONTO-DOMINION BANK
Rabe a Bacchus
Manager Business Bank
SCHEDULE "F"
RESERVE FUND PROGRAM
[see attached]
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