3649 Schedule "A" - To authorize an agreement between the Corporation of the Town of Tillsonburg and the County of Oxford for water and sanitary sewage - billing agreementBILLING AGREEMENT
THIS AGREEMENT is made and entered into this ctf day of
Between:
THE CORPORATION OF THE TOWN OF TILLSONBURG
a corporation incorporated pursuant to the laws of the Province of Ontario
Hereinafter referred to as the "Provider"
- and -
COUNTY OF OXFORD
a municipal corporation incorporated pursuant to the laws of the Province of Ontario
Hereinafter referred to as the "Client"
WHEREAS the Provider has established a utility billing and call centre service (herein referred
to as the "Service");
AND WHEREAS the Client wishes to subscribe for and receive the Service on the terms and
conditions set forth in this Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the covenants
and agreements hereinafter contained, it is agreed by and between the parties hereto as
follows:
1.0 PROVISION OF SERVICE
1.1 Description of Service. The Provider agrees to implement and maintain the Service
for the Client as described in Schedule "B" annexed hereto.
1.2 Provider's Representations and Warranties. The Provider hereby represents and
warrants to the Client that:
(a) the Provider has been duly incorporated and organized and is a validly subsisting
corporation under the laws of the Province of Ontario and the Provider has all
requisite corporate power and authority to own, lease and operate its properties
and assets and to carry on its business as now being conducted;
(b) no Event of Insolvency has previously occurred or presently exists in respect of
the Provider (and, as used herein, "Event of Insolvency" has the same meaning
as is given thereto in Section 7.1 hereof);
(c) there are no judgments, decrees, orders, awards or executions outstanding
against the Provider or its assets nor are there any suits or actions or legal,
administrative, arbitration, governmental or other proceedings or investigations
(including appeals and applications for review) affecting the Provider or its assets
pending or, to the knowledge of the Provider, threatened which might adversely
affect the Provider's right and ability to enter into this Agreement and to observe,
perform and discharge each and all of its obligations hereunder;
(d) the Provider has all necessary corporate power, capacity and authority so as to
enable it to enter into, execute and deliver this Agreement and to observe,
perform and discharge each and all of the covenants, terms and provisions of
this Agreement which are required to be observed and performed by it and such
entering into, execution, delivery and performance:
(i) has been duly and validly authorized by all necessary corporate action;
(ii) does not require the consent of or approval by, or any notification of or
filing with, any Person which has not already been obtained or done;
(iii) does not constitute a violation of any laws and regulations to which the
Provider is subject or any order, writ, injunction or decree applicable to it;
(iv) does not constitute a default (or would, with the passage of time or the
giving of notice or both, constitute a default) under any contract,
agreement or obligation to which the Provider is a party or by which it is
bound; and
(v) is in complete compliance with all applicable affiliate relationship codes
established by the Ontario Energy Board;
(e) this Agreement has been duly executed and delivered by the Provider and
constitutes legal, valid and binding obligations of the Provider enforceable
against the Provider in accordance with its terms;
(f) the Provider has the right and has obtained and holds all necessary licences,
permits, consents and other authorizations in order to enable the Provider to
grant to the Client each and all of the rights, licences, sub licences and
authorities which are being granted by the Provider to the Client pursuant to and
in accordance with this Agreement;
(g) there are no existing restrictions or constraints on the Provider's right and ability
to deliver the Service in accordance with this Agreement or on its right to use the
System Software in connection therewith;
Each and all of the representations and warranties of the Provider contained in this Section 1.2
and elsewhere in this Agreement shall be deemed to be made and given continuously
throughout the Initial Term and the Renewal Term during which this Agreement is to continue
and shall be deemed to have been relied on by the Client continuously throughout the Initial
Term and the Renewal Term.
1.3 Client's Representations and Warranties. The Client hereby represents and
warrants to the Provider that:
(a) the Client has been duly incorporated and organized and is a validly subsisting
municipal corporation under the laws of the Province of Ontario and the Client
has all requisite corporate power and authority to own, lease and operate its
properties and assets and to carry on its business as now being conducted;
(b) no Event of Insolvency has previously occurred or presently exists in respect of
the Client (and, as used herein, "Event of Insolvency" has the same meaning
as is given thereto in Section 7.1 hereof);
(c) the Client has all necessary corporate power, capacity and authority so as to
enable it to enter into, execute and deliver this Agreement and to observe,
perform and discharge each and all of the covenants, terms and provisions of
this Agreement which are required to be observed and performed by it and such
entering into, execution, delivery and performance:
(d) has been duly and validly authorized by all necessary corporate action;
(e) does not require the consent of or approval by, or any notification of or filing with,
any Person which has not already been obtained or done;
(f) does not constitute a violation of any laws and regulations to which the Client is
subject or any order, writ, injunction or decree applicable to it; and
(g) does not constitute a default (or would, with the passage of time or the giving of
notice or both, constitute a default) under any contract, agreement or obligation
to which the Client is a party or by which it is bound.
(h) Shall provide annually the formula for customer adjustments as they pertain to
write-off allowances, broken water mains and other ancillary issues.
1.4 Provider's Covenants. The Provider hereby covenants to, and agrees with, the
Client that, for so long as this Agreement shall remain in effect:
(a) the Service shall be provided by the Provider to the Client in compliance with all
of the requirements of this Agreement as well as in accordance with all
applicable laws (including the Personal Information Protection and Electronic
Documents Act (Canada) ("PIPEDA")), statutes, ordinances and regulations of all
governmental entities and other regulatory authorities having jurisdiction over the
parties hereto (or either of them);
(b) the Provider shall at all times provide and perform the Service in a timely,
professional, and competent manner and otherwise in accordance with this
Agreement and, without limiting the generality of the foregoing, the Provider shall
at all times achieve the service level requirements specified in the Schedules
attached to this Agreement In accordance with the Affiliate Relationship Code,
the provider will provide access; and
(c) the Provider shall do all such acts and things to ensure that its representations
and warranties which are set forth in Section 1.2 hereof remain fully true,
accurate and correct.
2.0 TERM
2.1 Initial Term. The initial term of this Agreement shall commence on January 1, 2011
(the "Effective Date") and shall, unless terminated at an earlier date by either of the
parties hereto in accordance with the applicable provisions of this Agreement, continue
in full force and effect for a one year term (the "Initial Term").
2.2 Renewal Term. This Agreement will automatically be renewed for successive one
(1) year periods unless either party provides the other party with no less than ninety
(90) days written notice prior to the end of the Initial Term or applicable renewal period
(each, a "Renewal Period" and collectively with the Initial Term, the "Term").
3.0 COMPENSATION
3.1 Fee for Providing Service. As payment in full to the Provider for its providing the
Service to the Client upon and in accordance with this Agreement, the Client hereby
agrees that it shall pay to the Provider fees in the amounts and upon the terms and
conditions outlined in Schedule "C" annexed hereto (the "Fees").
3.2 Additional Services. If, at any time and from time to time, the Client shall request the
Provider to provide any Additional Services (and, as used in this Agreement,
"Additional Services" means services which are not included in the services and
other matters described in Schedule "B" annexed hereto but which the Provider has
the resources and ability to provide), the Provider shall, promptly following its receipt of
such request, provide the Client with a written estimate of the cost of providing to the
Client the Additional Services so requested by the Client and the Client must approve
the estimate so given to it by notice in writing to the Provider prior to the Provider
commencing to provide the Additional Services so requested.
3.3 For the purposes of this Section 3, "CPI" means the consumer price index for "All
Items" published or established by Statistics Canada (or its successor) in relation to
the Province of Ontario. On every anniversary of the Effective Date during the Term
(each a "Change Date"), the Fees shall escalate by the average of the annual
percentage changes in the CPI in the twelve (12) consecutive months immediately
preceding the Change Date (the "Percentage Change"). In the event that the
Percentage Change is positive on a Change Date, then the Fees shall be multiplied by
the Percentage Change, and the resulting increase shall be added to the Fees and
such sum shall be the escalated Fees effective as of that Change Date. The Client
agrees that said escalated Fees shall thereafter be payable in accordance with the
terms of this Agreement, until the next Change Date. In no event shall the Fees in a
given year be less than the Fees for the immediately preceding year.
3.4 In the event that the CPI information necessary to determine the Percentage Change
is unavailable as of a Change Date, the Client shall continue to pay the Fees it had
been paying immediately prior to said Change Date until such information is made
available; at that time the Fees shall escalate in accordance with this Section and the
Client shall make a retroactive payment to the Provider equal to the increase. No
subsequent adjustments or recomputations, retroactive or otherwise, shall be made to
the CPI due to any revision that may later be made to the first published figure of the
CPI for any month.
4.0 CONFIDENTIAL INFORMATION
4.1 Confidential Information Defined. Except as otherwise expressly provided in this
Agreement, each party hereto (the "Receiving Party") agrees that all information
communicated (whether orally or in writing) and all documents provided to it by the
other party hereto (the "Disclosing Party") by any method and in any format or
medium whatsoever, and whether before, on or after the Effective Date, shall be
deemed to be confidential and proprietary to the Disclosing Party (and all such
information together with this Agreement are collectively referred to in this Agreement
as the "Confidential Information"). The Receiving Party may use the Confidential
Information of the Disclosing Party only in connection with, and for the purposes of,
exercising its rights and carrying out and performing its duties and obligations under
this Agreement. For greater certainty, all Client Database Files shall be deemed to be
included in, and form a part of, the Confidential Information of the Client.
4.2 Protection of Confidential Information. Each party hereto agrees to use the same
means as it uses to protect its own Confidential Information, but in no event less than
such means as are reasonable having regard to all then prevailing facts and
circumstances, to prevent the disclosure, and to protect the confidentiality of, the other
party's Confidential Information.
4.3 Permitted Disclosure of Confidential Information. A Receiving Party shall not
disclose any of the Confidential Information of the Disclosing Party without the prior
written consent of the Disclosing Party (which consent may be withheld by the
Disclosing Party in its sole discretion), provided that the Receiving Party may disclose
the Disclosing Party's Confidential Information to the Receiving Party's legal counsel
and other professional advisers and the Receiving Party's directors, officers,
employees and contractors, but only if and to the extent that such recipients need to
have access to such Confidential Information for the purposes of enabling or assisting
the Receiving Party to exercise its rights and to carry out and perform its duties and
obligations under this Agreement. A Receiving Party, before making any such
permitted disclosure, shall advise each such legal counsel, professional adviser,
director, officer, employee and contractor of the confidentiality obligations set forth in
this Article 4.0 and of the need to fully comply therewith. Compliance by each such
legal counsel, professional adviser, director, officer, employee and contractor with
such confidentiality obligations shall remain the responsibility of the Receiving Party
employing or retaining such Person. Notwithstanding the foregoing but subject to
Section 4.7 hereof, the Provider may disclose to such other Persons including, without
limitation, the Ontario Energy Board and the Independent Electricity Market Operator,
those and only those portions of the Client's Confidential Information that the Provider
is required by law to disclose in order to carry out and perform its duties and
obligations under this Agreement.
4.4 Exclusions from Confidential Information. Notwithstanding the foregoing, for the
purposes of this Agreement, Confidential Information shall not include any information
that:
(a) is or becomes generally available to the public in circumstances which did not
involve a breach of any of the provisions of this Article 4.0;
(b) becomes available to the Receiving Party on a non-confidential basis from a
source other than the Disclosing Party, provided that, to the knowledge of the
Receiving Party, such source is not bound by a confidentiality agreement with the
Disclosing Party or otherwise prohibited from disclosing such information to the
Receiving Party by a contractual, legal or fiduciary obligation;
(c) was known to the Receiving Party prior to its having been disclosed to the
Receiving Party by or on behalf of the Disclosing Party; or
(d) was independently conceived, discovered, acquired or developed by the
Receiving Party, whether before, on or after the Effective Date.
4.5 Compulsory Disclosure of Confidential Information. In the event that a party
hereto becomes legally compelled to disclose any Confidential Information of the other
party hereto in accordance with any laws, statutes, ordinances and regulations of any
governmental entity and other regulatory authority having jurisdiction over the party so
compelled or any court (or other like tribunal) order, subpoena or document discovery
request, the party so compelled shall immediately provide the other party hereto with
written notice thereof so that such other party may seek a protective order or other
remedy and/or waive compliance by the party so compelled with this Article 4.0 in
relation to the Confidential Information so compelled to be disclosed. If such other
party does not obtain such a protective order or other remedy within 15 days following
its receipt of any such written notice, the party so compelled may thereafter disclose
only that portion of the Confidential Information which it is advised, by written opinion
of duly qualified legal counsel, as being legally required to be disclosed and the party
so compelled shall use all reasonable best efforts to obtain reliable assurances that
confidential treatment will be given to the Confidential Information so disclosed.
4.6 Compliance with PIPEDA. In the event that any Confidential Information is
disclosed, the party making such disclosure shall obtain suitable assurances from the
Person to whom such disclosure is being made to ensure compliance with PIPEDA
and such other laws and regulations as may then be applicable.
4.7 Survival. The respective obligations of the parties under this Article 4.0 shall forever
survive the expiration or other termination of this Agreement.
5.0 NON-SOLICITATION OF EMPLOYEES
5.1 Non-Solicitation of Employees. During the term of this Agreement and for the
period of one (1) year thereafter neither party hereto shall, without the prior written
consent of the other party hereto (which consent may be withheld by such other party
in its sole discretion),employ, engage, recruit or solicit for employment or engagement,
or endeavor to entice away from such other party or any of its affiliates (or cooperate
with others in soliciting, hiring, enticing) any Person who then is or, at any time during
the one-year period immediately prior to the making of such solicitation or endeavor,
was employed by either such other party or any of its affiliates, or otherwise interfere
with or seek to influence or alter such Person's relationship with such other party or
any of its affiliates.
6.0 FORCE MAJEURE
6.1 Force Majeure Event Notwithstanding any other provision herein, neither party shall
be liable for any delay in performance or non-performance of any of its duties and
obligations under this Agreement (other than an obligation to pay money) if such delay
or non-performance is due to any cause beyond its control and which did not occur by
reason of the default, negligence or wilful act of the Provider including, but not limited
to, any act of God, flood, drought, lightning or fire, wide scale power interruption,
labour lockout, labour dispute (other than a trade dispute affecting the party claiming
force majeure), war, terrorist act, plague, military operations or riot, and any act,
omission or decision of a government ("Force Majeure Event").
6.2 Occurrence of a Force Majeure Event. If either of the parties hereto shall become
aware of a Force Majeure Event which gives rise to, or which is likely to give rise to,
any such failure or delay to perform its duties and obligations under this Agreement, it
shall immediately give written notice to the other party hereto and such notice shall set
forth reasonable details of the Force Majeure Event in question and the period of time
which it is estimated that such failure or delay shall continue. The parties hereto shall,
as soon as reasonably practicable following the making of such notification, discuss all
of the implications of the Force Majeure Event and use their best efforts to agree to a
commercially reasonable plan to remedy or overcome any problems arising from the
Force Majeure Event.
7.0 TERMINATION AND RENEGOTIATION OF AGREEMENT
7.1 Event of Insolvency. As used in this Agreement, "Event of Insolvency" means, in
respect of the Person then being referred to, that such Person: (a) has become or is
insolvent or has committed an act of bankruptcy (or other like act) within the meaning
of applicable bankruptcy and insolvency legislation; (b) has proposed a compromise or
arrangement to such Person's creditors generally or has taken any proceedings with
respect thereto or has had any petition or Receiving order in bankruptcy filed against
such Person; (c) has taken any proceedings to have such Person declared bankrupt
or, if such Person is other than a human being, wound-up or dissolved; (d) has taken
any proceedings to have a receiver appointed over all or any part of such Person's
assets; has had any custodian, trustee, creditor's agent, encumbrancer, receiver or
other like official or Person take possession of all or any part of such Person's assets;
or has had any execution or distress become enforceable or become levied or
enforced upon all or any material part of such Person's assets; or (e) has ceased (or
has threatened to cease) to carry on such Person's business.
7.2 Termination of Agreement by Mutual Written Agreement. This Agreement may be
terminated at any time by an agreement in writing which has been duly executed and
delivered by both of the parties hereto.
7.3 Termination of Agreement by the Client for Breach by the Provider. In the event
that:
(a) the Provider shall fail to pay when due any amount required to be paid by it under
this Agreement within 30 days following the date on which it was properly
invoiced for such amount and subsequently fails to pay in full such amount within
thirty (30) days following the date as on which the Client shall have sent a notice
in writing to the Provider demanding the making of such payment; provided that,
the foregoing shall not apply to any amounts which the Provider is legitimately
and bona fidely disputing its liability to pay.
(b) the Provider shall default in the performance of, or shall otherwise breach, any of
its other duties and obligations under this Agreement; provided that, if such
default or breach is capable of being cured, the right to terminate under this
subsection 7.3(b) shall arise only if the Provider shall fail to fully cure such default
or breach to the reasonable satisfaction of the Client within twenty one (21) days
following the date as on which the Client shall have sent a notice in writing to the
Provider demanding the curing of such default or breach (which notice shall set
forth reasonable details of the default or breach as in respect of which it is being
given); provided that, if such default or breach cannot be cured within such
twenty one (21) day period, then, provided that the Provider shall have
commenced and diligently proceeded to cure such default or breach within such
twenty one (21) day period, the Provider shall have one further period of fifteen
(15) days in which to cure such default or breach; or
(c) an Event of Insolvency shall have occurred in relation to the Provider, then (and
without limiting any right of the Client to terminate this Agreement which is set
forth elsewhere in this Agreement) the Client shall have the right to terminate this
Agreement, which termination shall be effective immediately upon the Client
giving notice in writing to that effect to the Provider (provided that, such
termination shall in no way prejudice or otherwise affect any rights or remedies
which the Client may then otherwise have against the Provider at law or in
equity).
7.4 Termination of Agreement by the Provider for Breach by the Client In the event
that:
(a) the Client shall fail to pay when due any amount required to be paid by it under
this Agreement within 60 days following the date on which it was properly
invoiced for such amount and subsequently fails to pay in full such amount within
30 days following the date as on which the Provider shall have sent a notice in
writing to the Client demanding the making of such payment; provided that, the
foregoing shall not apply to any amounts which the Client has been invoiced and
is legitimately and bona fidely disputing its liability to pay;
(b) the Client shall default in the performance of, or shall otherwise breach, any of its
other duties and obligations under this Agreement; provided that, if such default
or breach is capable of being cured, the right to terminate under this subsection
7.4(b) shall arise only if the Client shall fail to fully cure such default or breach to
the reasonable satisfaction of the Provider within twenty one (21) days following
the? date as on which the Provider shall have sent a notice in writing to the Client
demanding the curing of such default or breach (which notice shall set forth
reasonable details of the default or breach as in respect of which it is being
given); provided that, if such default or breach cannot be cured within such
twenty one (21) day period, then, provided that the Client shall have commenced
and diligently proceeded to cure such default or breach within such twenty one
(21) day period, the Client shall have one further period of 15 days in which to
cure such default or breach; or
(c) an Event of Insolvency shall have occurred in relation to the Client, then (and
without limiting any right of the Provider to terminate this Agreement which is set
forth elsewhere in this Agreement) the Provider shall have the right to terminate
this Agreement, which termination shall be effective immediately upon the
Provider giving notice in writing to that effect to the Client (provided that, such
termination shall in no way prejudice or otherwise affect any rights or remedies
which the Provider may then otherwise have against the Client at law or in
equity).
8.0 DAMAGE LIMITATION
8.1 Limitation for Non-Performance caused by Force Majeure. In no event shall the
Provider be liable to the Client for any damages resulting from, or related to, any
failure or delay of the Provider to properly perform and discharge its duties and
obligations under this Agreement if such delay or failure was due to a Force Majeure
Event as outlined in Section 6.1 hereof (and any such delay or failure by reason of a
Force Majeure Event shall not constitute a default or breach by the Provider under this
Agreement). Similarly, in no event shall the Client be liable to the Provider for any
damages resulting from, or related to, any failure or delay of the Client to properly
perform and discharge its duties and obligations under this Agreement if such delay or
failure was due to a Force Majeure Event as outlined in Section 6.1 hereof (and any
such delay or failure by reason of a Force Majeure Event shall not constitute a default
or breach by the Client under this Agreement).
8.2 No Liability for Consequential Damages. The parties agree that in no case shall
the Provider or the Client be liable for any loss of business, consequential or indirect
damages.
9.0 INDEMNIFICATION
9.1 Indemnification by the Provider in favour of the Client.
(a) The Provider shall, and does hereby, indemnify, defend and hold harmless the
Client and its affiliates, subsidiaries and shareholders and each of their
respective officers, directors, and employees (each, a "Client Indemnitee") from
and against any and all claims, demands, suits, losses, liabilities, damages,
obligations, payments, costs and expenses and accrued interest thereon
(including the costs and expenses of, and accrued interest in respect of, any and
all actions, suits, proceedings, assessments, judgements, awards, settlements
and compromises relating thereto and reasonable lawyers' fees and reasonable
disbursements in connection therewith) (each, an "Indemnifiable Loss") which
may be asserted against or suffered by each Client Indemnitee relating to, or in
connection with, or resulting from or arising out of any negligence or willful
misconduct of the Provider, its employees or any authorized representatives,
including any of its third party contractors, consultants, agents or advisors, in
performing the Provider's duties and obligations under this Agreement. For
greater certainty, in the event of contributory negligence or other fault of a Client
Indemnitee, such Client Indemnitee shall only be indemnified hereunder in the
proportion that the Client Indemnitee's negligence or fault did not contribute to
the Indemnifiable Loss in respect of which indemnity is then being sought.
(b) The Client shall, for all purposes, be deemed to hold the provisions of subsection
9.1 (a) hereof that are for the benefit of the Client Indemnitees that are not a party
to this Agreement in trust for such Persons as third party beneficiaries under this
Agreement; and, if a Client Indemnitee shall, by reason of its not being a party to
this Agreement or for any other reason whatsoever, be precluded from asserting
a claim for indemnification to which it is otherwise entitled under this Article 9.0,
the Provider hereby agrees that the Client shall be entitled to assert, and to
receive payment of, any and all such claims for and on behalf, and in the place
arid stead, of such Client Indemnitee to the same extent as if the Indemnifiable
Loss upon which such claim is based had been incurred by the Client directly
and for its own account.
9.2 Indemnification by the Client in favour of the Provider.
(a) The Client shall, and does hereby, indemnify, defend and hold harmless the
Provider and its affiliates, subsidiaries and shareholders and each of their
respective officers, directors, and employees (each, a "Provider Indemnitee")
from and against any and all claims, demands, suits, losses, liabilities, damages,
obligations, payments, costs and expenses and accrued interest thereon
(including the costs and expenses of, and accrued interest in respect of, any and
all actions, suits, proceedings, assessments, judgements, awards, settlements
and compromises relating thereto and reasonable lawyers' fees and reasonable
disbursements in connection therewith) (each, an "Indemnifiable Loss") which
may be asserted against or suffered by each Provider Indemnitee relating to, or
in connection with, or resulting from or arising out of any breach of this
Agreement by the Client. For greater certainty, in the event of contributory
negligence or other fault of a Provider Indemnitee, such Provider Indemnitee
shall only be indemnified hereunder in the proportion that the Provider
Indemnitee's negligence or fault did not contribute to the Indemnifiable Loss in
respect of which indemnity is then being sought.
(b) The Provider shall, for all purposes, be deemed to hold the provisions of
subsection 9.2(a) hereof that are for the benefit of the Provider Indemnitees that
are not a party to this Agreement in trust for such Persons as third party
beneficiaries under this Agreement; and, if a Provider Indemnitee shall, by
reason of its not being a party to this Agreement or for any other reason
whatsoever, be precluded from asserting a claim for indemnification to which it is
otherwise entitled under this Article 9.0, the Client hereby agrees that the
Provider shall be entitled to assert, and to receive payment of, any and all such
claims for and on behalf, and in the place and stead, of such Provider Indemnitee
to the same extent as if the Indemnifiable Loss upon which such claim is based
had been incurred by the Provider directly and for its own account.
9.3 Indemnification Procedure.
(a) If a Person entitled to indemnity under Section 9.1 or Section 9.2 hereof (such
Person being sometimes referred to in this Section 9.3 as the "Indemnified
Party") wishes to assert a claim for indemnity against a Person liable to it under
Section 9.1 or Section 9.2 hereof (such liable Person(s) being sometimes
referred to in this Section 9.3 as the "Indemnifier"), it can only do so by giving a
notice in writing (a "Claim Notice") to the Indemnifier as soon as is reasonably
practicable, which Claim Notice must provide reasonable particulars of the details
of the Indemnifiable Loss for which indemnity is then being sought and the
amount thereof, such amount being herein called the "Indemnity Amount".
(b) The Indemnifier shall have the period of twenty one (21) days following its receipt
of such Claim Notice (such period being herein called the "Cure Period") in
which to cure or rectify, at its sole cost, the matters for which indemnity is being
sought, as specified in such Claim Notice, and the Indemnifier shall forthwith do
all that is reasonably within its power to do so as to cause or effect such cure or
rectification; and, if the matter for which indemnity is sought:
(i) has been fully cured or rectified to the satisfaction of the Indemnified
Party, acting reasonably, on or prior to the expiration of the Cure Period,
the Indemnifier shall have no further liability to the Indemnified Party in
respect thereof; or
(ii) has not been fully cured or rectified to the satisfaction of the Indemnified
Party, acting reasonably, prior to the expiration of the Cure Period, the
Indemnifier shall, forthwith upon the expiration of the Cure Period, pay to
the Indemnified Party the amount payable in respect of that matter
pursuant to this Article 9.0.
10.0 REMEDIES FOR BREACH
10.1 Application for Court Order. If a party hereto is in breach of or in default under this
Agreement, the other party hereto (if itself is not in breach of or in default under this
Agreement) shall have the right to apply to a court of competent jurisdiction for an
injunction to restrain the party hereto in breach/default from continuing the activity
causing the breach/default and/or for an order to specifically enforce the terms of this
Agreement so breached/defaulted.
11.0 DISPUTE RESOLUTION
11.1 Parties to try to Resolve Dispute. In the event of a dispute regarding this
Agreement, the parties shall attempt, in good faith, to resolve such dispute amicably
and promptly within thirty (30) Business Days through the appointment, if required, of a
senior representative of each party hereto.
11.2 Arbitration.
(a) If pursuant to Section 11.1 hereof, the parties hereto cannot come to a resolution
of their dispute within the period of ten (10) Business Days therein referred to,
then such dispute shall be submitted to arbitration conducted pursuant to the
Arbitration Act, 1991 (Ontario), as then in effect and to the extent not inconsistent
with the provisions herein specified.
(b) Such arbitration shall be held in Southwestern Ontario and the dispute shall be
heard by one arbitrator who has not previously been employed by either party or
by any of its affiliates, who does not have a direct or indirect interest in either
party or any of its affiliates, who is disinterested in the subject matter and who
has expertise and experience in dealing with matters comparable to the subject
matter of the dispute. Such arbitrator shall either be mutually agreed by the
parties within ten (10) calendar days after agreeing to arbitration, or failing
agreement, shall be selected under the rules of the Arbitration Act, 1991
(Ontario).
(c) The judgment rendered by the arbitrator may be enforced in any court of
competent jurisdiction. All costs of the arbitration shall be paid equally by the
parties, unless the award shall specify a different division of the costs. Each
party shall be responsible for its own expenses, including counsel fees unless the
award shall specify differently. Both parties shall be afforded adequate
opportunity to present information in support of its position on the dispute being
arbitrated. The arbitrator may also request additional information from the
parties.
(d) Should the parties commence arbitration pursuant to this Section 11.2, the
following rules shall apply:
(i) the arbitrator shall be bound by the terms of this Agreement and may not
detract from or add to its terms;
(ii) the parties hereto may by mutual written agreement specify the rules that
are to govern the arbitration proceedings and limit the matters to be
considered thereat; and
(iii) the findings and award of the arbitrator shall be final and conclusive and
shall be binding upon the parties hereto and shall not be subject to
appeal.
(e) Subject to Section 10.1 hereof, each of the parties hereto agrees that it shall not
bring a lawsuit concerning any dispute covered by the arbitration provisions of
this Section 11.2.
12.0 NOTICES
12.1 All notices and communications sought or, by the terms hereof, required to be given by
one party hereto to another shall be given in writing by personal delivery (which
delivery may be effected by depositing the notice or communication in question with a
responsible courier service for delivery (courier charges fully prepaid) to the addressee
thereof), by registered/certified mail (postage fully prepaid) mailed from anywhere
within the United States or Canada, or by telecopier, delivered, addressed or
telecopier to such other party at the address/telecopier number specified for such party
in Schedule "A" annexed hereto (or at such other address and/or telecopier number as
may be given by a party hereto to the other by notice in writing from time to time) and
such notices or communications shall be deemed to have been received, if sent by
personal delivery, upon delivery, if transmitted by telecopier, upon the completion of its
transmission or, if sent by registered or certified mail, four days following the day of the
mailing thereof; provided that, if any such notice or communication shall have been
mailed and if regular mail service shall be interrupted by strikes or other irregularities,
such notice or communication shall be deemed to have been received four (4) days
following the resumption of normal mail service.
13.0 GENERAL CONTRACT PROVISIONS
13.1 No Amendment. This Agreement shall not be amended, superseded or cancelled
except by a written instrument signed by all of the parties hereto and any instrument
purporting to amend, supersede or cancel this Agreement or any part hereof shall not
be binding and shall be of no effect unless and until it has been executed and
delivered by all of the parties hereto.
13.2 Assignment of Agreement and Inurement No party to this Agreement may assign
its interest in this Agreement without the prior written consent of the other party, such
consent not to be unreasonably withheld or delayed. Subject to the foregoing, this
Agreement shall be binding upon and ensure to the benefit of the parties hereto and
their respective successors and permitted assigns.
13.3 Authority. Each party hereto represents and warrants to the other party hereto that it
has the requisite power and authority to enter into and perform the terms of this
Agreement and that it has done and will continue to do all things necessary so that this
Agreement will be valid, binding and legally enforceable upon it.
13.4 Business Day. As used in this Agreement, "Business Day" means any day, other
than a day that is a Saturday, a Sunday or any other day that is a statutory holiday
under the laws of the Province of Ontario or Canada.
13.5 Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which taken together shall be
deemed to constitute one and the same instrument. Counterparts may be executed
either in original or faxed form and the parties adopt any signatures received by a
Receiving facsimile machine as original signatures of the parties to this Agreement;
provided, however, that any party providing its signature in such manner shall promptly
forward to the other party an original signed copy of this Agreement which was so
faxed.
13.6 Entire Agreement. This Agreement, including the schedules hereto, constitutes the
entire, full and complete agreement and understanding among the parties hereto in
respect of the subject matters hereof and supersedes all prior agreements,
arrangements and understandings, whether oral or written, among the parties hereto
with respect thereto. There are no representations, inducements, promises,
statements of intention or agreements, oral or written, among the parties hereto not
embodied herein which are of any force or effect with reference to this Agreement or
the subject matters hereof.
13.7 Further Assurances. Each party hereto agrees that, forthwith upon the written
request of the other party hereto, the party so requested shall execute and deliver
such further documents, cause such resolutions to be passed, exercise his vote and
influence, and otherwise do and perform and cause to be done and performed any and
all such further acts and things as are within his reasonable power to do and as are
reasonably necessary or desirable in order to give full effect to each and every part of
this Agreement and the matters herein provided for.
13.8 Independent Legal Advice. The parties acknowledge and agree that they have both
had the opportunity to seek and obtain independent legal advice in respect of this
Agreement, and the parties hereto acknowledge having obtained their own
independent legal advice with respect to the terms of this Agreement prior to its
execution and delivery.
13.9 Jurisdiction. This Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario and the laws of Canada applicable therein. Except
as otherwise set forth herein, the parties hereto shall submit to the exclusive
jurisdiction of the courts of the Province of Ontario with respect to any dispute arising
under this Agreement.
13.10 No Partnership. Nothing in this Agreement shall be deemed in any way or for any
purpose to constitute the parties hereto partners in the conduct of any business or
otherwise.
13.11 Severability. Any provision of this Agreement which is invalid, prohibited or
unenforceable in any jurisdiction for any reason whatsoever shall, as to such
jurisdiction only, be ineffective and severable from this Agreement to the extent of such
invalidity, prohibition or unenforceability but such invalidity, prohibition or
unenforceability shall not invalidate or otherwise affect the remaining provisions of this
Agreement nor shall it affect the validity or enforceability of such provision in any other
jurisdiction.
13.12 Waiver, Any party which is entitled to any right or benefit under this Agreement may,
and shall be entitled and have the right to, waive any term or condition relating to the
application of this Agreement in relation to any matter or transaction, provided that any
such waiver shall only be effective in that particular instance and only if it is in writing
signed by such party and delivered to the party to whom such waiver is directed. No
failure on the part of any party to exercise, and no delay by any party in exercising, any
right under this Agreement shall operate as a waiver of such right.
13.13 Number, Gender, "this Agreement", Division of Agreement, "Person",
"including" and "sole discretion". In this Agreement, the use of the singular
includes the plural and vice versa; words importing gender include all genders; all
verbs shall be construed as agreeing with the required word and/or pronoun; and the
words 'this Agreement', "herein", "hereof", "hereby", "hereto", "hereunder" and like
expressions refer to this Agreement as a whole and not to any particular part hereof,
unless the context otherwise requires. The division of this Agreement into Articles,
sections, subsections and schedules and the insertion of headings are for convenience
of reference only and shall not affect the interpretation or construction of this
Agreement. As used in this Agreement, "Person" includes a human being, a trust, a
partnership (general or limited), a joint venture, a body corporate or politic, a
Regulatory Authority, a limited liability company, an association and any other form of
incorporated or unincorporated organization or entity; and "including" (and variations
thereof) means "including without limitation" and shall not be construed to limit any
general statement which it follows to the specific or similar items or matters
immediately following it. Wherever in this Agreement it is stated that a Person
(including a party to this Agreement) may withhold such Person's consent (or any other
matter) in its "sole discretion", "sole discretion" shall mean such Person's "sole,
absolute, arbitrary and unfettered discretion".
13.14 Reference to Laws. Any reference in this Agreement to a statute or a provision
thereof shall be construed as a reference to that statute or provision as amended, re-
enacted or replaced from time to time and shall include subordinate legislation, as
amended, re-enacted or replaced from time to time, made under that statute or
provision thereof.
13.15 Schedules. Each Schedule shall form an integral part of, and be subject to the terms
and conditions of, this Agreement. Without limiting the generality of the foregoing,
unless otherwise set out in a Schedule, all capitalized terms used in a Schedule shall
have the meanings given to such terms in the main body of this Agreement.
13.16 Conflict of Provisions. In the event of any conflict or inconsistency between the
provisions contained in the main body of this Agreement and the provisions of any
Schedule hereto, the provisions of the main body of this Agreement, and not such
Schedule, shall prevail and govern to the extent of such conflict or inconsistency.
13.17 Construction Principle. The principle of construction whereby, if words of a contract
are ambiguous, they should be interpreted against the author of the words and not
against the other party, shall not apply.
13.18 Currency and Withholdings. All dollar amounts expressed in this Agreement are
expressed in Canadian Dollars and all payments contemplated by this Agreement shall
be made in Canadian funds, all of which payments shall be subject to all such
withholdings and other deductions as may be required by all applicable laws and
regulations.
13.19 Time of Essence. Time is and 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.
13.20 Calculation of Time Periods. When calculating the period of time within which or
following which any act is to be done or step taken pursuant to this Agreement, the
date which is the reference date in calculating such period shall be excluded. If the
last day of such period is a not a Business Day, the period in question shall end on the
next Business Day.
13.21 Cumulative Remedies. Each of the parties hereto acknowledges and agrees that all
remedies which it may have at law and in equity are cumulative and that the election of
a party hereto to pursue any one or more remedies available to it shall not prevent it
from pursuing any other remedies which may be available to it.
IN WITNESS WHEREOF this Agreement has been executed by the duly authorized signatories
of the parties hereto as of the date first written above.
Corporation of the Town of Tillsonburg
Per: ^ t>Krrv
Name:
Title:
Per:
,
O Vcvw p nI 7 *y -?*-
Name: \V -{ 1 I f y L A Q I \€ r
Title: P ft O
COUNTY OF OXFORD
Name: Donald E. McKay
Title: Warden ________
9
Name: Brenda J. Tabor
Title:
SCHEDULE"A"
to the Billing Agreement
NOTICES
1. If to the Client, at:
County of Oxford (full legal name of company)
P.O. Box 1614,21 Reeve Street (full mailing address)
Woodstock, Ontario N4S 7Y3
(519) 539-9800 (telephone number)
(519) 421 -2207 (fax number)
(contact name)
CAO (position)
2. If to the Provider, at:
Town of Tillsonburg (full legal name of company)
200 Broadway Street
Suite 204
Tillsonburg ON N4G 5A7 (full mailing address)
(519) 842-9431 (fax number)
(519) 688-3009 (telephone number)
CAO (contact name and/or position)
SCHEDULE"B"
Billing Agreement
SERVICES PROVIDED TO THE CLIENT
1. The Provider will keep in force for the Term of this Agreement all of the necessary
insurance that a prudent person would carry and maintain in respect of the Services
performed by The Provider under the terms of this Agreement including, but not limited
to, commercial general liability insurance on an occurrence basis to an inclusive limit of
not less than two million dollars ($2,000,000.00) per occurrence. Proof of Insurance by
means of a valid Certificate of Insurance or equivalent shall be provided to the Client to
confirm the above requirements.
2. The Provider shall maintain all water accounts by providing the following services:
i. monthly meter readings for water for commercial and industrial accounts
ii. monthly meter readings for residential accounts
iii. billing of metered and flat rate water and sewer on a monthly basis
iv. final bill reads as per the customer's request
v. collection for active and finalized accounts in accordance with Oxford County
Collections Policy
vi. provide the first and follow-up point of customer contact to address account
adjustments
vii. provide first point of contact and prepare all relevant service orders for the
Town operating staff
viii. update water meter information in CIS system
ix. implement and test all new rates
x. provide call centre for:
24
a) final readings
b) locates
c) water quality
d) rate inquiries
e) high water consumption concerns
f) leaking water meters
g) requests for remote meters
h) any miscellaneous water calls
xi. reporting - provide electronic monthly water and sewer statistics
3. The Provider shall remit payment for water and sewer revenues billed for the month by
the fifteenth working day of the following month, less the cost of per customer fee and a
1% holdback of total revenues for adjustment of bad debts. Bad debt amounts will be
reconciled annually.
4. The Provider shall send to the customer one piece of communication per year (inserts to
be supplied by the Client according to the Town of Tillsonburg specifications); all
communications to be mutually agreed to.
5. Any special billings and/or additional communications will be billed in addition to the
normal fee at an amount negotiated with the Client.
25
SCHEDULE"C"
to the Billing Agreement
COMPENSATION
The Provider shall commence invoicing of the Client's customers January 1, 2011.
The Provider shall invoice the Client at the end of each calendar month for the services and
fees incurred.
The Client shall pay for the Service as provided for in the Fee Structure Table below. For rate
changes or new rates, for 2012 and 2013 a charge of $2000.00 in total Additional Management
services, such as custom report writing, is available from the Provider at the prevailing costs per
hour from Harris.
The Provider will insert additional communications for the Client at a rate of $0.04 per account
provided the material meets specifications of The Provider and the regular postage rate is not
affected. All other communications will be at a cost recovery basis.
All applicable taxes are in addition to the fees set out in the Fee Structure Table.
If meter reading frequency is changed or the method of collection, the client will have new
pricing provided equal to the amount equivalent to the meter reading costs or cost savings.
26
Fee Structure Table:
January 1 to December 31, 2011
January 1 2012 to December 31,
2012
Metered Water Service
Metered Water Service
Flat Rate Service
$3.83 Per Bill plus extra
meter reading costs of
$5,500
$3.85 Per Bill
$2.95 Per Bill
27