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3976 Schedule A - Water Billing Agreement' ' BILLING AGREEMENT THIS AGREEMENT is made and entered into this 16 day of Uu,...,bor, 2015. Between: THE CORPORATION OF THE TOWN OF TILLSONBURG a municipal 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, collections, 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 "8" annexed hereto. 1.2 Provider's Representations and Warranties. The Provider hereby represents and warrants to the Client that: 1 (a) 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; (b) 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 (c) 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; (d) 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; 2 (e) 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 utility billing related 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. warrants to the Provider that: The Client hereby represents and (a) 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: (b) has been duly and validly authorized by all necessary corporate action; (c) 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; (d) 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 (e) 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. (f) Shall annually authorize 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: 3 ~---I (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) including, but not limited to, "Personal Information" as defined in the Municipal Freedom of Information and Protection of Privacy Act ("MFIPPA"); (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. 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. 2.0TERM 2.1 Initial Term. The initial term of this Agreement shall commence on January 1, 2016 (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 three year term (the "Initial Term"). 2.2 Renewal Term. This Agreement will have a one year extension upon mutual agreement of the Provider and the Client's Directors of Corporate Services and Public Works. 2.3 Notice-the Client and Provider shall provide notification in writing at least six months in advance of the termination date of the Initial Term of this Agreement and any agreed upon Renewal Term hereto indicating their intention to terminate or exercise the option to renew under section 2.2. 4 ------- 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 5 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 6 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 7 --I 4.6 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. Compliance with PIPEDA and MFIPPA. 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, including, but not limited to, "Personal Information" as defined in the Municipal of Information and Protection of Privacy Act ("MFIPPA"); 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 FORCE MAJEURE 5.1 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"). 5.2 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 8 -~---· ·--~- 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. 6.0 TERMINATION AND RENEGOTIATION OF AGREEMENT 6.1 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. 6.2 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 60 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, 7the 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 9 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 6.3 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 7.0 DAMAGE LIMITATION 7.1 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 10 ·-r , 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). 7.2 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. 8.0 INDEMNIFICATION 8.1 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 emp.loyees (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 "lndemnifiable 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 lndemnifiable 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 lndemnitees that are not a party 11 ' ' 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 and stead, of such Client Indemnitee to the same extent as if the lndemnifiable Loss upon which such claim is based had been incurred by the Client directly and for its own account. 8.2 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 "lndemnifiable 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 lndemnifiable 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 lndemnitees 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 12 ~---- 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 I ndemnifiable Loss upon which such claim is based had been incurred by the Provider directly and for its own account. 8.3 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 lndemnifiable 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. 13 9.0 REMEDIES FOR BREACH 9.1 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. 10.0 DISPUTE RESOLUTION 1 0.1 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. 1 0.2 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 (1 0) 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 (1 0) 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 14 • 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. 11.0 NOTICES 11.1 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 15 . ~· ----. .. -~--· 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. 12.0 GENERAL CONTRACT PROVISIONS 12.1 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. 12.2 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. 12.3 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. 12.4 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. 12.5 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 16 forward to the other party an original signed copy of this Agreement which was so faxed. 12.6 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. 12.7 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. 12.8 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. 12.9 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. 12.10 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. 17 ---1-· 12.11 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. 12.12 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. 12.13 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". 18 12.14 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. 12.15 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. 12.16 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. 12. 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. 12.18 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. 12.19 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. 12.20 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. 19 12.21 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 Tillson burg Per: ~--=--=----- Name: Peter M. Crockett. P.Eng Name: Donna Wilson Title: Chief Administrative Officer Title: Clerk I have the authority to bind the Corporation Per:~ Name: Robert Walton. P.Eng. ame: Stephen Molnar Title: Director of Public Works Title: Mayor I have the authority to bind the Corporation I have the authority to bind the Corporation 20 --------- SCHEDULE "A" to the Billing Agreement NOTICES 1. If to the Client, at: County of Oxford P.O. Box 1614, 21 Reeve Street Woodstock, Ontario N4S 7Y3 (full/ega/ name of company) (full mailing address) (519) 539-9800 (519) 421-2207 GAO 2. If to the Provider, at: Town ofTillsonburg 200 Broadway Street Suite 204 Tillsonburg ON N4G 5A7 (519) 842-9431 (519) 688-3009 GAO (telephone number) (fax number) (contact name) (position) (full/ega/ name of company) (full mailing address) (fax number) (telephone number) (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 and wastewater accounts by providing the following services: i) Client billing of metered and flat rate water and wastewater on a monthly basis ii) collection for active and finalized accounts in accordance with the Client's "Receivable Management" Policy iii) provide first point of contact and prepare all relevant service orders and forward to the Client or its Designate for processing iv) update water meter information in the utility related_billing software v) implement and test all new rates vi) provide the first and follow-up point of customer contact for: a) final readings and notify Client's metering agent b) dirty water and notify the Client or its Designate for processing c) rate inquiries d) high water consumption concerns in accordance with the Client's "Water Leak Adjustment" Procedure e) requests for payment deferrals in accordance with the Client's "Water Wastewater Payment Deferral" Procedure f) leaking water meters and notify the Client or its Designate for processing g) any miscellaneous water calls vii) reporting -monthly statistics reports in a format approved by the Client viii) provide water reports or access to water reports for consumption histories, high usage complaints, non-conforming customers and other day-to-day matters as required ix) provide, on a quarterly basis, water consumption for wastewater use statistics to the Client By-Law Enforcement Officer 22 " . x) provide, before February 28th of each year, water statistics to support reporting requirements under Ontario Regulation 450/07, Ontario Water Resources Act 3. The Client will be responsible for meter reading services and provide the data to the Provider in an electronic format. The Client will set the reading cycle independently from the electrical billing cycles and the Provider will include this information on the bill. 4. The Provider will remit to the Client monthly revenues on the 15th business day of the following month, less fees incurred for services provided, supported by an invoice supporting the services rendered. 5. The Client or its Designate will provide all services related to water meter repairs or replacements. This includes automatic meter reading (AMR) technology, touch pad installation and connections related to water meter. 6. The Provider shall send to customers one piece of communication per year (inserts to be supplied by the Client according to Provider's specifications). All communications to be mutually agreed to. 7. The Provider will warehouse water meters and the associated radio read equipment provided by the Client or its Designate. The Client will provide minimum stock values and manufacturer specifics. The Client or its Designate will provide all materials necessary to complete service work. The Provider will collect fees for new water meters specified by the Client. The remittance of this fee will be submitted to the Client with the monthly remittances. 8. Any special billings and/or additional communications will be billed in addition to the normal fee at an amount negotiated with the Client. 9. Regular meetings between the Provider and the Client to ensure quality service is provided to the water and wastewater users in accordance with Client policy, not less than on a quarterly basis. 23 -I SCHEDULE "C" to the Billing Agreement INVOICING AND PAYMENT The Provider shall commence invoicing of the Client's customers as per this Agreement on January 1, 2016. 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. 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. Effective January 1, 2016, including all labour, office, hardware, software, software licensing costs, on a per bill basis, the water and wastewater billing costs shall be in accordance with the following fee structure table. Fee Structure Table: 2016. Flat Rate Service $3.09 Per Bill annual CPI adjustments Fee structure subject to negotiated change with increased utilization and participation in e- billing. Anticipated cost savings will be shared between the Client and Provider. 24 -----~---