HomeMy WebLinkAbout2002-028
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THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW 2002-028
Being a by-law to authorize the execution of an
agreement with the Oshawa Transit Commission for
the acquisition, administration, operation,
maintenance, storage, and additional rentals of transit
buses within the Municipality of Clarington.
THE CORPORATION OF THE MUNICIPALITY OF ClARINGTON HEREBY ENACTS
AS FOllOWS:
THAT the Mayor and Clerk are hereby authorized to execute, on behalf of The
Corporation of the Municipality of Clarington and seal with the Corporate Seal, an
agreement between Oshawa Transit Commission and The Corporation of the;
Municipality of Clarington, an agreement to the satisfaction of the Director of
Engineering Services.
BY-lAW read a first and second time this 4th day of March, 2002.
BY-lAW read a third time and finally passed this 4th day of March, 2002.
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THIS AGREEMENT made this 2nd day of July, 2002
BETWEEN:
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
("Clarington")
OF THE FIRST PART
- and -
THE OSHA W A TRANSIT COMMISSION
("Commission")
OF THE SECOND PART
- and -
THE CORPORATION OF THE CITY OF OSHA W A
("Oshawa")
OF THE THIRD PART
WHEREAS section 210 paragraph 104 of the Municipal Act, R.S.O. 1990 c. MA5, as
amended, allows municipalities to pass by-laws for maintaining and operating a public
bus transportation service, subject to the approval of the council of any adjoining
municipality, within the limits of such adjoining municipality;
AND WHEREAS subsection 2(1) of City of Os haw a Act, 1960 S.O. 1960, c. 160
provides that Oshawa has the power to establish, maintain, extend and operate a public
bus transportation system within the City of Oshawa and, subject to the approval of the
council of any municipality adjoining the City of Oshawa, within the limits of any such
adjoining municipality;
AND WHEREAS the Commission operates a public bus transportation service in the
geographic area of the City Oshawa for Oshawa under the authority of the City of
Oshawa Act, 1960 and By-law 47-96 of Os haw a;
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AND WHEREAS the City of Oshawa Act allows the operation of a bus transportation
system outside the limits of the City of Oshawa, with the consent of the Municipal
Council of Oshawa;
AND WHEREAS Oshawa's Council has passed By-law No. 59-2002 pursuant to
paragraph 104 of the Municipal Act to maintain and operate, through the Commission, a
public bus transportation service within the area of Clarington known as Bowmanville,
subject to the approval of Clarington, and to provide its consent to such operation by the
Commission in accordance with section 5 of the City of Oshawa Act, 1960 and to
authorize the Mayor and City Clerk to execute this AGREEMENT on behalf of Oshawa;
AND WHEREAS Clarington's Council passed By-law No. 2002-118 approving the
establishment, maintenance and operation by Oshawa through the Commission of a
public bus transportation system within the Bowmanville area of Clarington, subject to
the terms of this AGREEMENT;
AND WHEREAS Clarington's Council has passed By-law 2002-028 to authorize the
execution of this AGREEMENT on behalf of Clarington;
AND WHEREAS the Commission has authorized the execution of this Agreement on
behalf of the Commission;
NOW THEREFORE in consideration of the premises, mutual covenants and conditions
herein contained, the parties hereto AGREE AS FOLLOWS:
Section 1
Interpretation
1.1 Wherever a term set out below appears in the text of this AGREEMENT in capital
letters, the term shall have the meaning set out for it in this Section 1.
(a) AGREEMENT means this agreement, including its recitals, schedules and
appendices, which form an integral part of it, as amended from time to time.
(b) CONTRACT YEAR shall mean the period between August 19 of one year and
August 18 of the immediately following calendar year during the currency of this
AGREEMENT and any renewals thereof.
( c) CPI means, for each CONTRACT YEAR, the consumer price index for all goods
and services as at December 31 of the immediately preceding calendar year for
the City of Toronto, as calculated by Statistics Canada.
(d) EFFECTIVE DATE means 12:01 a.m., August 19,2002.
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(e) GROSS OPERATING COSTS means, for the first CONTRACT YEAR
commencing on the EFFECTIVE DATE, the following operating rates (exclusive
of all applicable TAXES) per bus in the operation of the TRANSIT SERVICES:
i) $35.00 per SERVICE HOUR of bus operation for the cost of the services
provided by Commission-employed bus drivers inclusive of all benefits
and employee contributions to or resulting from Work-place Safety
Insurance, Pay Equity, the Ontario Municipal Employee Retirement
System, and insurance of all types provided to or for Commission-
employed bus drivers;
ii) $65.00 per hour of bus repairs and service calls;
iii) $65.00 per hour for use of buses supplied by Oshawa (in the event of the
temporary unavailability of the transit coaches to be supplied by
Clarington under this AGREEMENT);
iv) $25.50 per day for each day the bus is actually used in the provision of the
TRANSIT SERVICES for cleaning and service;
v) $20.00 per hour for special cleaning plus 15% administration fee;
vi) $65.00 per hour for mandated Ministry of Transportation Safety
Inspections;
vii) $10.50 per day for storage;
viii) Actual cost of fuel plus 8% handling fee;
ix) Actual costs for parts plus 10% administration fee; and
x) Actual costs per kilometre for tires plus 10% administration fee.
And for each subsequent CONTRACT YEAR during the term of this
AGREEMENT or any renewals thereof, GROSS OPERATING COSTS means
items ii) through x) of the GROSS OPERATING COSTS of the immediately
preceding CONTRACT YEAR, increased on the anniversary of the EFFECTIVE
DATE by CPI applied to items the hourly rates shown in items ii) to vii) plus item
i) increased by a percentage as agreed upon by the Commission's General
Manager and Clarington' s Director of Engineering, or such persons as they may
direct.
(f) OPERATING COSTS means the Commission's GROSS OPERATING COSTS
less all actual cash fares received by the Commission for travel within
Bowmanville, which cash fares will be retained by the Commission for its own
use.
(g) SERVICE HOUR means the actual hours of the operation ofa bus in the
provision of the TRANSIT SERVICES within the limits of Bowmanville plus:
(i) the actual time of travel between the Oshawa Transit Commission Garage
and the start of the scheduled route in Bowmanville;
(ii) the actual time of travel between the end of the scheduled route in
Bowmanville and the Oshawa Transit Garage;
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(iii) the actual time required to complete all report in procedures which shall
not exceed 20 minutes respecting each procedure; and
(iv) the actual time required to complete all report out procedures which shall
not exceed 10 minutes respecting each procedure.
(h) SERVICE LEVELS means the detailed terms of service provision to be
established in writing from time to time by the mutual agreement of the
Commission's General Manager and Clarington's Director of Engineering, or
such persons as they may direct, including:
i) service schedules (including days of service and start/finish times on days
service is provided);
ii) service routes;
iii) location of and maintenance levels for bus stops;
iv) establishing contacts for information and complaints;
v) parking restrictions at bus stop locations;
vi) GO Transit affiliations;
vii) expansion of service areas within the limits ofthe area under the
jurisdiction of Clarington;
viii) rules for use of transfers and other fare media; and
ix) code of ethics of Commission-employees who are assigned to provide
TRANSIT SERVICES.
(i) TAXES means Goods and Services Tax and Provincial Sales Tax, if applicable.
CD TRANSIT SERVICES means the provision of public bus transportation services
in Bowmanville in accordance with the SERVICE LEVELS but shall not include
any public bus transportation services designed to accommodate individuals with
disabilities or special needs.
Section 2
Transit Service Provision
2.1 As at the EFFECTIVE DATE the Commission will provide TRANSIT
SERVICES to Clarington, subject to and in accordance with the provisions of this
AGREEMENT.
2.2 Oshawa hereby grants its consent to the operation of a Transit Service outside the
geographic boundaries of the City of Os haw a, subject to the terms of this
Agreement.
2.3 Clarington hereby grants to the Commission the right to use and occupy its
highways, boulevards and bus stops for the purpose of operating conventional
transit buses and other transit vehicles thereon necessary to provide TRANSIT
SERVICES in accordance with this AGREEMENT.
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2.4 Clarington agrees to maintain the highways, boulevards and bus stops used for the
provision of the TRANSIT SERVICES, including snow removal, at its own
expense, which expense shall not be charged to Oshawa or the Commission and
shall not be considered as any credit toward the OPERATING COSTS.
2.5 Subject to prior approval by Clarington through its annual budget process,
Clarington shall construct and maintain, at its sole expense, such bus stops, signs
and shelters as it may desire from time to time along the service routes as
established by the SERVICE LEVELS, at its sole expense. Clarington will advise
the Commission as to the locations and design of same with a view to maintaining
consistency of appearance and operating requirements throughout the
Bowmanville area served by the Commission under this AGREEMENT.
2.6 Clarington shall supply, at its sole expense, which expense shall not reduce the
OPERATING COSTS, three forty (40) foot diesel transit coaches to be operated
and maintained by the Commission for the provision of the TRANSIT
SERVICES in accordance with this AGREEMENT.
2.7 Where any of the transit coaches to be supplied by Clarington under this
AGREEMENT are inoperative at any time, the Commission, subject to vehicle
availability, shall use its own buses to meet the SERVICE LEVELS and the costs
of the use of the Commission's buses shall be included in the OPERATING
COSTS, at the rates set out in the definition therefor.
2.8 Revisions to the SERVICE LEVELS require six (6) months advance written
notice unless otherwise agreed by the parties.
2.9 The TRANSIT SERVICES will connect to the public bus transportation service
operated within the limits of Oshawa, either directly or via GO Transit bus
service, and Clarington and the Commission each agree to accept and honour
transfers, ten-ride cards, passes and other fare media as agreed between each
transportation service without charging any additional amounts to the passenger
presenting the transfer, and without charging or crediting any amounts to the party
from which the transfer originates. Rules and terms of use and acceptance shall
be determined in accordance with the SERVICE LEVELS.
2.10 Should Clarington choose to enter into a co-fare or local fare agreement with GO
Transit, Clarington shall solely be responsible for Clarington's costs arising from
such agreements, which shall not form any credit toward the OPERATING
COSTS, but the Commission agrees that it will co-operate in data collection and
adhere to the requirements of those agreements in the provision of the TRANSIT
SERVICES. Any additional costs in providing the TRANSIT SERVICES as a
result of adherence to those agreements shall be negotiated between the parties
and added to the GROSS OPERATING COSTS.
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2.11 Clarington agrees that it shall expeditiously place before its Municipal Council a
by-law, and that its Council will give fair and reasonable consideration to the
passing of such a by-law, to authorize the granting to the Commission of a non-
exclusive right to operate charter bus services within the limits of Clarington
when requested by Clarington, without consideration for a period of three years,
which will not form a part of the TRANSIT SERVICES and the costs of which
shall not form a part of the OPERATING COSTS, subject to the approval of the
Ontario Municipal Board in accordance with the Municipal Franchises Act if
required by law. Costs for the use of charter services shall be paid by the third
party contracting for the service or, where Clarington contracts for the service, by
Clarington in accordance with the agreed to costs of that contract for service.
The terms and conditions ofthis AGREEMENT, save for this Article, shall not
apply to that contract or the charter service.
2.12 No later than three months prior to the expiry of the by-law referred to in Article
2.10, and from time to time as each subsequent by-law expires during the term of
this AGREEMENT or any renewals thereof, Clarington agrees that it shall
expeditiously place before its Municipal Council a further by-law, and that its
Council will give fair and reasonable consideration to the passing of such by-law,
to authorize the granting to the Commission of a non-exclusive right to operate
charter bus services within the limits of Clarington when requested by Clarington,
without consideration for a further period of three years.
2.13 The bus drivers and all maintenance and administrative staff provided by the
Commission to perform its obligations under this AGREEMENT shall be
exclusively employees of the Commission who shall have been properly trained
by the Commission. They shall not be deemed to be employees of Clarington for
any purpose. Without limiting the generality of the foregoing, the Commission
shall ensure that such employees are governed by The Commission's current code
of ethics for its employees.
Section 3
Costs
3.1 Clarington shall pay the Commission the OPERATING COSTS for the provision
ofthe TRANSIT SERVICES, plus any TAXES that may be exigible with respect
to either the OPERATING COSTS or for the provision of the TRANSIT
SERVICES on a monthly basis.
3.2 The Commission shall provide Clarington with a monthly statement of costs and
revenues together with an invoice for the OPERATING COSTS of the TRANSIT
SERVICES for that same month. Clarington shall pay to the Commission the full
amount of such invoices within thirty (30) days of receipt of such invoices.
3.3 In the event cash fares received in any given month exceed the Commission's
GROSS OPERATING COSTS for that same month, the Commission shall remit
to Clarington the excess amount.
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3.4 As soon as possible after the execution of this AGREEMENT, Clarington will
amend its purchasing by-law to make it inapplicable to the provision of the
TRANSIT SERVICES under this AGREEMENT.
3.5 The Commission's General Manager and Clarington's Director of Engineering, or
their designates, shall meet no later than April 30th in each CONTRACT YEAR to
negotiate the cost of bus drivers per SERVICE HOUR component of GROSS
OPERATING COSTS for the immediately subsequent CONTRACT YEAR.
3.6 Clarington acknowledges that during the first CONTRACT YEAR, in order to
provide the TRANSIT SERVICES, the Commission must hire and train six new
operators. Clarington hereby agrees to pay the reasonable costs of the training of
the new operators including the costs of salary and benefits of the new operators
while undergoing training, and the reasonable costs of the instructors and
materials provided in connection with such training. Notwithstanding the
foregoing, Clarington shall not be required to pay any training costs of more than
six new operators. Where changes to SERVICE LEVELS necessitate the hiring
or training of new staff, by mutual agreement of the Commission and Clarington,
then the reimbursement of the reasonable costs related to training new hires will
be agreed upon prior to any changes in the SERVICE LEVELS taking effect.
3.7 The Commission shall give Clarington appropriate written documentation as
requested by Clarington's Director of Engineering Services, acting reasonably, of
all GROSS OPERATING COSTS referred to in this AGREEMENT.
Furthermore, the Commission shall obtain Clarington's Director of Engineering
Services approval in writing before undertaking major repairs to the buses used in
providing Transit Services if the costs thereof are to be included in the Gross
Operating Costs. For the purposes of this subsection, a major repair is anyone
repair with an estimated cost for labour or parts or both which exceeds $2500.00.
Section 4
Revenues
4.1 Clarington shall establish fares for the TRANSIT SERVICES for travel within the
limits of Clarington and will supply tickets, passes, multiple-ride tickets, transfers
or other fare media at Clarington's sole expense. Clarington shall arrange for
sales locations for such fare media at its sole expense.
4.2 The parties agree to pursue all revenue opportunities available through the
placement of interior and exterior advertising on the buses used in the provision of
the TRANSIT SERVICES by the Commission's current advertising contractor.
Any such revenue shall be credited to Clarington against OPERATING COSTS in
an amount equal to the product of the actual revenue received by Oshawa from its
current advertising contractor and a factor which is equal to the number of buses
owned by Clarington divided by the number of buses owned by the Commission,
from time to time. All such formulae and revenue projections shall be given to
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Clarington in writing by the last day of the then current year of the contract
between the Commission and its advertising contractor.
4.3 Clarington agrees to provide any licence necessary to either the Commission or its
advertising contractor with respect to the placement of advertising on the buses
used in the provision of the TRANSIT SERVICES on terms substantially similar
to the Commission's current contract with its advertising contractor, as it may be
modified from time to time, provided that any such modifications that affect
Clarington have received Clarington's approval before they are made.
Section 5
Indemnity and Insurance
5.1 Clarington and the Commission each agree to maintain, at their sole expense,
which expense shall not form a part ofthe OPERATING COSTS, adequate
general liability insurance in an amount of not less than twenty million dollars
($20,000,000) in which both parties are named additional insured persons with
respect to the obligations expressed in this AGREEMENT. As part of the
insurance provided under this Article, Clarington shall insure the transit coaches
supplied by it under this AGREEMENT in accordance with the requirements of
the Highway Traffic Act, R.S.O. 1990 c. H.8, as amended, provided that the
coverage for general liability shall be not less than the above minimum
requirements. The policies shall each contain a no subrogation clause in favour of
the parties and a no cross-liability clause, as approved by both the parties, acting
reasonably.
5.2 The Commission hereby agrees to indemnify and hold harmless Clarington
against all actions, suits, claims, demands, losses, costs, charges and expenses
including legal costs (hereinafter the "claims"), arising out of or in consequence of
the provision of the TRANSIT SERVICES, save for such claims caused by either
the negligence of, or breach of this AGREEMENT by, Clarington.
5.3 Provided also that the above indemnity shall not apply to the claims, or the
portion of the claims as may be apportioned under the Negligence Act, R.S.O.
1990 c. N.1, as amended (or successor legislation) or otherwise arising from the
failure of Clarington to maintain its highways, boulevards or bus stop structures.
In the event that any claims are found to be on account of Cia ring ton's failure to
maintain its highways, boulevards or bus stop structures, Clarington hereby agrees
to indemnify the Commission to the extent such claims are attributable to
Clarington's failure to maintain same.
5.4 Provided also that the above indemnity contained in subsection 5.2 shall not apply
to any deductible under any policy of insurance required to be maintained by any
party under this AGREEMENT.
5.5 The terms and provisions of Articles 5.2, 5.3 and 5.4 shall survive any termination
of this AGREEMENT.
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5.6 The parties hereby agree that any and all liability resulting from all actions, suits,
claims, demands, losses, costs, charges and expenses arising out of actions,
incidents, grievances or investigations which occurred prior to the EFFECTIVE
DATE against any party shall remain the sole liability of that party, shall not be
transferred hereunder and that party shall wholly indemnify the other party with
respect to any and all liability, including defence and legal costs pertaining
thereto.
5.7 The Commission shall maintain a garage liability policy of insurance in an
amount of not less than full replacement cost of the transit coaches supplied by
Clarington (as defined below) under this AGREEMENT in the event of their
damage, loss or destruction while being stored, maintained or repaired in the
Commission's facilities or while being tested during or after their maintenance or
repair by the Commission. The garage liability policy shall also contain third
party liability insurance in the operation of the transit coaches by employees of
the Commission during or after they have been maintained or repaired. The
garage liability policy shall be maintained in amounts not less than the following:
$10,000,000 - Third Party Liability
Replacement Value with a $2,500 deductible - Collision (Legal Liability) for
transit coaches replaced under this Agreement
$1,150,000 with a $2,500 deductible - Specified Perils (for anyone occurrence)
Clarington shall be an additional named insured with respect to damage to, or loss
or destruction of, the transit coaches supplied by Clarington under this
AGREEMENT while being stored, maintained or repaired in the Commission's
facilities or while being tested during or after their maintenance or repair by the
Commission.
The policies shall each contain a no subrogation clause in favour of the parties and
a no cross-liability clause, as approved by both the parties, acting reasonably. The
expense of maintaining the above garage liability policy of insurance, and any
deductible chargeable and paid thereunder, shall form a part of the OPERATING
COSTS. For the purposes of this paragraph the replacement costs of the transit
coaches supplied by Clarington is:
2 refurbished Transit Coaches at $ 275,000 each
1 leased Transit Coach at $ 30,500
Section 6
Dispute Resolution
6.1 Where matters of differences arise between the parties in any matter connected
with or arising out of this AGREEMENT, including the interpretation of this
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AGREEMENT, the Commission's General Manager and Clarington's Director of
Engineering, or such persons as they may direct, hereby agree to meet and discuss
the matter within five (5) days following receipt of notice by anyone party to the
other with the objective of resolving any dispute.
6.2 Following meetings of the parties' representatives as provided for above, in the
event that a mutually satisfactory resolution is not achieved within thirty (30) days
following the receipt of the above notice by the other party, the dispute shall be
referred to a single arbitrator, if the parties agree upon its identity. Should the
parties be unable to agree upon the identity of an arbitrator, then the matter shall
be referred to a single arbitrator, to be appointed by a Justice of the Superior
Court of Justice (Ontario). The arbitrator shall conduct the arbitration pursuant to
the Arbitration Act, 1991 and every award or determination shall be final and
binding on the parties and their successors and assigns, and shall not be subject to
appeal. The arbitrator shall be allowed unfettered and unlimited discretion to
determine in each and every case the solution which best balances the competing
interests of the parties to the arbitration in accordance with this AGREEMENT
and he or she shall not be bound by any legal precedent in such determination.
The arbitrator shall not be bound by the provisions of the Arbitration Act, 1991 in
respect of his or her fees. The arbitrator shall be entitled to award all or part of
his or her fees against any party in accordance with the principles which govern
an award of costs against a non-successful party in a contested matter before the
Superior Court of Justice. In the absence of such an award by the arbitrator, the
arbitrator's costs shall be borne equally by both parties, without regard to their
involvement in the arbitration.
Section 7
Temporary Withdrawal of Services
7.1 In the event of a labour shortage, strike, lock-out or labour dispute or loss of
service of the transit coaches to be supplied by Clarington under this
AGREEMENT (and the corresponding inability of the Commission to supply
sufficient buses of its own) which would prevent the provision of the TRANSIT
SERVICES in accordance with the SERVICE LEVELS, the Commission shall be
excused from the performance of its obligations hereunder, but not its obligations
under Section 5, until the cause of the inability of the Commission to provide the
TRANSIT SERVICES in accordance with the SERVICE LEVELS is remedied,
but subject to the remaining provisions of this Section.
7.2 In the event that the Commission anticipates or actually does temporarily
withdraw services under this AGREEMENT, the Commission shall provide
notice of such withdrawal or anticipated withdrawal to Clarington as soon as
reasonably possible, including the reasons therefor.
7.3 In the event that the Commission has temporarily withdrawn services under this
Section and cannot restore the provision of the TRANSIT SERVICES in
accordance with the SERVICE LEVELS within ninety (90) days following the
date the services are first withdrawn, Clarington shall be entitled to terminate this
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AGREEMENT on five (5) days written notice to Oshawa and the Commission.
The Commission shall be entitled to payment for all services provided under this
AGREEMENT to the date of termination.
Section 8
Term and Termination
8.1 This AGREEMENT shall come into force commencing on the EFFECTIVE
DATE and shall continue in force for a period ofthree (3) years ("INITIAL
TERM").
8.2 Except for the first renewal for a three (3) year period commencing on the
expiration of the INITIAL TERM, which first renewal shall require prior approval
of Clarington and written notice given to the Commission before the expiry of the
period of two (2) years and six (6) months calculated from the EFFECTIVE
DATE, this AGREEMENT shall automatically renew for additional terms of three
(3) years unless either party provides written notice to the contrary not less than
six (6) months in advance of the last day of the then current three (3) year term, in
which case this AGREEMENT shall terminate on the last day of the then current
three (3) year term. The Commission shall be entitled to payment for all services
provided under this AGREEMENT to the date of termination.
8.3 Notwithstanding termination of this AGREEMENT, the Commission covenants
and agrees to maintain all accounts and records with respect to the provision of
the TRANSIT SERVICES for not less than seven (7) years following such
termination and to make the same available for examination and/or copying by
Clarington's Director of Engineering Services, Director of Finance, Solicitor or
Auditor on request of any of these persons during regular business hours at the
administrative offices of the Commission.
8.4 The terms and provisions of this Section and Article 5.2 shall survive any
termination of this AGREEMENT. The requirement to maintain insurance in
accordance with Article 5.1 shall continue for not less than two (2) years
following termination of this AGREEMENT, and may continue longer with the
mutual consent of the parties.
Section 9
Notice
9.1 Any notice under this AGREEMENT shall be in writing and shall be served
personally or by regular mail or facsimile transmission upon each of the parties at
the following addresses:
The Corporation of the Municipality of Clarington
40 Temperance Street
Bowmanville, Ontario L 1 C 3A6
Fax: 905-623-0584
Attention: Director of Engineering Services
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The Oshawa Transit Commission
710 Raleigh Avenue
Oshawa, Ontario L1H 3T2
Fax: 905-579-1050
Attention: General Manager
The Corporation of the City of Oshawa
C/o Legal and Real Estate Services
50 Centre Street South
Oshawa, Ontario L1H 3Z7
Fax: 905-436-5689
Attention: Director
Receipt of notice shall be deemed on:
(a) the date of actual delivery of a hand delivered document on the last party
to be provided with the notice; or
(b) the business day next following the date of facsimile transmission; or
(c) five (5) days following the date of mailing of the notice;
whichever is applicable.
Any party may change its address for notice by giving notice of change of address
pursuant to this Section.
Section 10
General
10.1 The Commission shall keep proper and detailed accounts and records in
accordance with generally accepted accounting practices of all factors entering
into the computation of the amounts payable pursuant to this AGREEMENT and
maintain same for no less than seven (7) years following each CONTRACT
YEAR to which the accounts and records relate. Clarington may during regular
business hours at the offices of the Commission, upon giving reasonable notice
and at Clarington's sole expense, audit and inspect all accounts, records, receipts,
vouchers and other documents relating to the provision of the TRANSIT
SERVICES and shall have the right to make copies and take extracts at its own
expense. The Commission shall afford all reasonable facilities, physical and
otherwise, for such audits and inspections.
10.2 Clarington shall have the right to independently audit, at its sole expense, all of
the accounts and records pertaining to the provision of the TRANSIT SERVICES.
10.3 The parties hereto shall with reasonable diligence do all such things and provide
all such reasonable further assurances as may be required to fulfil their obligations
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pursuant to this AGREEMENT. Each party agrees to provide whatever further
documents or instruments may be considered by the other parties to be reasonably
necessary or desirable to effect the purpose of this AGREEMENT and carry out
its provisions at any time during the currency of this AGREEMENT.
10.4 In the event that any covenant or term of this AGREEMENT should at any time
be held by any competent tribunal to be void or unenforceable, then the
AGREEMENT shall not fail, but the covenant, provision or term shall be deemed
to be severable from the remainder of this AGREEMENT, which shall otherwise
remain in full force and effect.
10.5 No party or parties shall call into question, directly or indirectly, in any
proceedings whatsoever in law or in equity or before a Court or any
administrative tribunal, the right of the parties or any of them to enter into this
AGREEMENT or the enforceability of any term, agreement, provision, covenant
and/or condition contained in this AGREEMENT, and this clause may be pleaded
as an estoppel as against any such party in any proceedings.
10.6 Subject to the requirements of the Municipal Freedom oflnformation and
Protection of Privacy Act, the Commission shall give Clarington monthly a
written record of the complaints received during the previous month and how
each has been responded to or dealt with by the Commission.
10.7 Subject to the requirements of the Municipal Freedom oflnformation and
Protection of Privacy Act, R.S.O. 1990 c. M.56 (or successor legislation) except
as otherwise provided in paragraph 10.6, the parties shall not divulge any
information of which they have knowledge to be confidential whether
communicated to or acquired by them in the course of carrying out the obligations
or roles provided pursuant to this AGREEMENT. No such information shall be
used by either party in any way without the approval of the other party.
10.8 Oshawa and the Commission will comply with all applicable legislation in
performing its obligations under this AGREEMENT.
10.9 This AGREEMENT contains the entire agreement between the parties with
respect to the provision of the TRANSIT SERVICES and it is agreed that there is
no covenant, promise, agreement, condition precedent or subsequent, warranty or
representation or understanding, whether oral or written, other than as set forth in
this AGREEMENT with respect to the subject matter of this AGREEMENT.
10.10 No supplement, amendment or waiver of or under this AGREEMENT (excepting
notice of change of address as contemplated in Section 9) shall be binding unless
executed in writing by the party or parties to be bound thereby and no waiver by a
party of any provision of this AGREEMENT shall be deemed or shall constitute a
waiver of any other provision or a continuing waiver unless otherwise expressly
provided.
'. .,
"
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10.11 Nothing in this AGREEMENT shall be construed as creating an agency,
partnership, joint venture or employment relationship between Oshawa, the
Oshawa Transit Commission and Clarington, or between Clarington and any of
Oshawa's or the Commission's principals, agents, contractors or employees. The
Commission is an independent contractor to Clarington in providing the
TRANSIT SERVICES.
10.12 This AGREEMENT cannot be assigned to another party without the written
consent of Clarington, Oshawa and the Commission. Neither Oshawa nor the
Commission shall subcontract the provision of TRANSIT SERVICES under this
AGREEMENT to any person without the prior written consent of Clarington
having been given to Oshawa and the Commission to do so.
10.13 The parties shall act co-operatively in good faith, and with expedition in
implementing the intent of this AGREEMENT.
15
10.14 This Agreement shall enure to the benefit of and be binding upon the parties and
their respective successors and permitted assigns.
IN WITNESS WHEREOF each of the parties hereto has affixed its corporate seal by
the hands of its proper officers on the date inscribed on the first page of this Agreement.
- ,'-
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) THE OSHA W A TRANSIT COMMISSION
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~ eneral Manager I
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) air
)Mayor
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) City Clerk