Transcription
Version Dated June 26, 2007OPERATION, MAINTENANCE AND PELLETMARKETING SERVICES AGREEMENTTHIS AGREEMENT made in quadruplicate as of theday of, 2007, between:CITY OF TORONTO(hereinafter referred to as the “City”)of the First Part- and –VEOLIA WATER CANADA, INC.(hereinafter referred to as the “Operator”of the Second Part
Operation, Maintenance and Pellet Marketing AgreementIndexARTICLE 1 INTERPRETATION .21.1Definitions.21.2Schedules.81.3Entire Agreement .81.4Priority of Documents .81.5Recitals.81.6Headings .91.7Final Contract Year .91.8Gender and Number.91.9Amendments .91.10Number of Days.91.11References to Law.91.12Standard of Care .91.13References to Currency.101.14Express Terms.101.15Construction of Agreement .101.16Approval.101.17Information .101.18Electronic Information .11ARTICLE 2 TERM AND COMMENCEMENT DATE .112.1TERM .112.2Overlap Period .112.3Secondary Testing Period .12ARTICLE 3 OPERATION AND MAINTENANCE OF THE PELLETIZER FACILITY .123.1Pelletizer Facility in General.123.2Operation and Maintenance of the Pelletizer Facility.143.3Testing and Sampling.183.4Change of Law .193.5Process Change or Operational Change initiated by the Operator.223.6Operating and Management Policies and Procedures. .223.7Communications and Reporting .233.8Contingency and Emergency Planning .313.9SCADA System .323.10Signage and Labelling .333.11Employee Training or Certification .333.12Health and Safety Procedures.333.13Safety Audits and Non-Compliance.353.14Ontario Human Rights .353.15Workplace Safety and Insurance Act .353.16City Policies .363.17Technical Support.363.18Litigation Support.363.19Security .363.20Operator’s Use of Subcontractors .373.21City’s Ability to Repair.373.22Utilities .37ARTICLE 4 PROVISION OF PELLET MARKETING SERVICES .374.1Scope of Pellet Marketing, Handling and Distribution Services .374.2Pellet Marketing Plan .394.3Pellet Handling and Distribution Services .39ARTICLE 5 PROTECTION OF ASSETS AND MAINTENANCE OF PELLETIZER FACILITY .40
5.1General.405.2Civil Maintenance Program .415.3General Housekeeping.415.4Repair and Replacement of Mechanical and Electrical Equipment, and Civil, Structural andSite-Related Assets.415.5Maintenance of Mechanical and Electrical Equipment .435.6Further Testing by the City .445.7Computerized Maintenance Management System .445.8Warranties .455.9Final Condition Survey .45ARTICLE 6 CAPITAL ership of Capital Improvements .476.4Proposal for Capital Improvements.476.5Impact of Capital Improvements.47ARTICLE 7 EFFICIENCY SAVINGS .497.1Efficiency Savings .49ARTICLE 8 COMPENSATION PAYABLE TO THE OPERATOR .498.1Fee Structure.498.2Adjustments.518.3Procedure for Adjustments to the Commercial Operations Fee .528.4Utilities .528.5Method of Payment .538.6Interest.548.7Payment of Taxes .548.8Withholding of Commercial Operations Fee .558.9Disputes.558.10Construction Lien Act.55ARTICLE 9 DOCUMENT RETENTION .559.1Maintain Records .559.2Right of Audit .55ARTICLE 10 REVERSION OF THE PELLETIZER FACILITY .5610.1Surrender of Facility in Required Condition.5610.2Reversion Transition Plan.5610.3Surrender of Pelletizer Facility.5710.4Transfer and Further Assurances.5710.5Final Transition Plan .57ARTICLE 11 SUSPENSION OF AGREEMENT OR TERMINATION OTHER THAN FOR DEFAULT .5811.1Suspension by the City .5811.2Operator to Suspend Operations.5811.3No Removal of Materials .5811.4Expiry of Suspension .5811.5Suspension Payment.5811.6Termination of Agreement .5811.7Termination Provisions .58ARTICLE 12 INTELLECTUAL PROPERTY .5912.1Intellectual Property .5912.2Operation and Maintenance Intellectual Property .5912.3Supply of Goods to the City .5912.4Pellet Marketing Services Intellectual Property .59ARTICLE 13 CONFIDENTIALITY AND NON-DISCLOSURE .5913.1Non- Disclosure .5913.2Municipal Freedom of Information and Protection of Privacy Act.6013.3Confidential Information.60ARTICLE 14 TRADE MARK .60
14.1Trademark.60ARTICLE 15 INSURANCE AND FINANCIAL SECURITY.6015.1Insurance Policies.6015.2Financial Security .60ARTICLE 16 REPRESENTATIONS AND WARRANTIES .6116.1General Representations and Warranties of the Operator.6116.2General Representations and Warranties of the City .62ARTICLE 17 INDEMNIFICATION.6317.1Operator Indemnity .6317.2Exception .6417.3City Indemnity .6417.4Exception .6417.5Notice of Third Party Claim.6417.6Legal Counsel.6517.7Cooperation .65ARTICLE 18 DISPUTE RESOLUTION.6518.1Dispute Resolution.6518.2Provisional Remedies .6518.3Continuing Performance .6518.4Claims on Termination.65ARTICLE 19 ANNUAL PERFORMANCE REVIEW.6619.1Annual Performance Review .66ARTICLE 20 UNCONTROLLABLE CIRCUMSTANCE .6620.1Uncontrollable Circumstance.6620.2Performance .67ARTICLE 21 ASSIGNMENT AND CHANGE OF CONTROL .6721.1Assignment .6721.2Change in Control.68ARTICLE 22 CONFLICT OF INTEREST.6822.1No Conflict of Interest .6822.2Meaning of Conflict of Interest .6822.3Disclosure of Conflict of Interest.68ARTICLE 23 NO CLAIM FOR LACK OF CAPACITY .6823.1No Claims .68ARTICLE 24 GUARANTEE BY GUARANTOR .6824.1Guarantee Agreement .6824.2Delivery of Legal Opinion.69ARTICLE 25 GENERAL PROVISIONS .6925.1Notices .6925.2Relationship of the Parties.7025.3No Personal Liability .7025.4Further Assurances .7025.5Waiver.7025.6Publicity and Communications.7025.7Governing Law.7025.8Enurement .7125.9Severability .7125.10 Time of Essence .7125.11 Covenants.7125.12 Forbearance .7125.13 Rights Cumulative.7125.14 Security Verification .7125.15 Survival .7225.16 Counterparts .7225.17 Limitation on Damages .72ARTICLE 26 CHANGES.72
26.1Change Orders and Change Requests .7226.2Determination .73ARTICLE 27 DEFAULT BY THE OPERATOR.7327.1Default by the Operator .7327.2Event of Default .74ARTICLE 28 REMEDIES AND OTHER RIGHTS OF THE CITY .7628.1Remedies of the City .7628.2Emergencies.7628.3Other Termination Rights.7728.4Termination Transition Provisions .7728.5Set-Off.7828.6Remedies Cumulative and Waiver .78ARTICLE 29 TERMINATION PAYMENTS .7929.1Termination for other than Default.7929.2Release and Discharge .79ARTICLE 30 DEFAULT BY THE CITY .7930.1Default by the City .79ARTICLE 31 REMEDIES OF THE OPERATOR .8031.1Remedies of the Operator .8031.2Remedies Cumulative and Waiver .80
OPERATION, MAINTENANCE AND PELLET MARKETINGSERVICES AGREEMENTTHIS AGREEMENT made in quadruplicate as of theday of, 2007.BETWEEN:CITY OF TORONTO(hereinafter referred to as the “City”)OF THE FIRST PART- and VEOLIA WATER CANADA, INC.,(hereinafter referred to as the “Operator”)OF THE SECOND PARTRECITALSWHEREAS:1.The City owns and operates the City’s main wastewater treatment plant known as the AshbridgesBay Treatment Plant located at 9 Leslie Street in the City of Toronto (the “ABTP”).2.On September 29, 1998 the City issued a Request for Proposal for the beneficial use of biosolids,including the design and construction of facilities at the ABTP capable of producing Biosolidsmeeting agricultural use standards (the “RFP”).3.USF Canada Inc. as it was then known, submitted a Technical Proposal and a Price Proposal(the “Proposal”) dated December 16, 1998 in response to the RFP.4.On April 30, 1999, the City contracted with USF Canada Inc., now known as Veolia WaterCanada, Inc. (“Operator”), it having changed its name effective March 2, 2004, for the design andconstruction of a biosolids pelletizer facility (the “Services Agreement”) located at the ABTP (the“Pelletizer Facility”). City Council, by its adoption of Clause No. 23 of the Strategic Policies andPriorities Committee Report No. 5 at is meeting held on March 2, 3 and 4, 1999, authorized theServices Agreement.5.The Services Agreement was supplemented by a letter agreement dated May 7, 2003 to providethe Operator with additional time to fulfill its obligations under the Services Agreement.6.On August 21, 2003, a fire occurred at the Pelletizer Facility.7.In the summer of 2005, the City and the Operator entered into an Amendment Agreementeffective August 21, 2003 (the “Amendment”) to the Services Agreement to amend the ServicesAgreement so to ensure the completion of construction of the Pelletizer Facility. City Council byits adoption of Clause No. 10 of Works Committee Report No. 1 at its meeting held on February1, 2 and 3, 2005 and of Notice of Motion J (39) at its meeting held on May 17, 18 and 19, 2005,authorized the Amendment. At the same time and pursuant to the same authority, City Council1
authorized City staff to enter into negotiations with the Operator related to this Agreement subjectto a report back to the appropriate Committee regarding the proposed terms and conditions andCity Council approval of this Agreement.8.The City requires an operator to operate and maintain the Pelletizer Facility.9.The City also requires Pellet marketing, handling and distribution services in order to beneficiallyuse the Pellets produced by the Pelletizer Facility.10.The City desires to retain the professional services of the Operator as an independent contractorto provide operation, maintenance, Pellet marketing, handling and distribution services, as setforth herein, and the Operator desires to provide such services pursuant to the terms hereof.11.The City and the Operator have agreed to all of the terms and conditions in respect of theoperation and maintenance of the Pelletizer Facility and the marketing, handling and distributionof the Pellets as evidenced by this Agreement.12.The Operator’s authority to enter into this Agreement is evidenced by corporate resolutions,certified copies of which are attached as Schedule 1.13.Pursuant to the adoption by City Council of Clause No. [insert] of Public Works and InfrastructureCommittee Report No. [insert] at its meeting held on [insert], City Council has authorized thisAgreement with the Operator in respect of the operation and maintenance of the Pelletizer Facilityand the provision of Pellet Marketing Services.NOW, THEREFORE, THIS AGREEMENT WITNESSES that in consideration of the sum of 2.00 andother good and valuable consideration, including the mutual covenants, contained herein, the receipt andsufficiency of which is hereby acknowledged, the City and the Operator hereby mutually covenant andagree, respectively, as follows:ARTICLE 1INTERPRETATION1.1DefinitionsIn this Agreement, including the recitals thereto, the following terms have the following meanings unlessthe context otherwise requires:“Affiliated Company” means, with respect to the Operator, any other person who has direct or indirectControl of the Operator, or is under direct or indirect Control of the Operator, and includes any person inlike relation to an Affiliated Company.“Agreement” means this Operation, Maintenance and Pellet Marketing Services Agreement and allschedules attached to it as they may be amended, modified, supplemented, restated, or replaced fromtime to time by mutual agreement signed by the appropriate representatives of the Parties.“Annual Operations and Maintenance Report” means the report set forth in Article 3.7(g).“Attractables” means all pieces of mobile plant, equipment and furniture which are not physicallyattached to the Pelletizer Facility and which are required in the current day-to-day operations andmaintenance of the Pelletizer Facility.“Battery Limits” means the lines and points set forth in Schedule 2.2
“Biosolids” means the stabilized material generated at the ABTP from the anaerobic digestion andmechanical dewatering of municipal wastewater solids (sludge) during the wastewater treatment process.“Biosolids Specification” mea
Agreement with the Operator in respect of the operation and maintenance of the Pelletizer Facility and the provision of Pellet Marketing Services. NOW, THEREFORE, THIS AGREEMENT WITNESSES that in consideration of the sum of 2.00 and other good and valuable consideration, including the mutual covenants, contained herein, the receipt and
