HomeMy WebLinkAbout2002-029
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY -LAW 2002-029
Being a by-law to authorize entering
into an Agreement with Motorola
Canada Limited
WHEREAS the Municipality of Clarington requires changes to be made to the
Emergency Services dispatch services;
NOW THEREFORE BE IT RESOLVED THAT the Mayor and Municipal Clerk be
authorized to execute agreements referred to as Communications System
Agreement and iSolutions Service Agreement with Motorola Canada Limited
either jointly with the Municipalities of Ajax, Whitby, Oshawa and Pickering, or
individually with Clarington, or Clarington with the City of Oshawa acting as agent
of the collective municipalities; whichever option provides the best legal
opportunity for the Municipality for the provision of infrastructure (hardware and
software) requirements for an 800 MHz system.
By-law read a first and second time this 4th day of March 2002.
By-law read a third and finally passed this 4th day of March, 2002.
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EX F
Department of Corporate Services
June 13, 2002
The Corporation of the Town of Ajax
65 Harwood Ave. South
Ajax, Ontario L 1 S 2H9
Attention: Town Clerk
The Corporation of the Municipality of Clarington
40 Temperance Street
Bowmanville, Ontario L 1 C 3A6
Attention: Municipal Clerk
The Corporation of the City of Pickering
One The Esplanade
Pickering, Ontario L 1V 6K7
Attention: City Clerk
The Corporation of the Town of Whitby
575 Rossland Road East
Whitby, Ontario L 1 N 2M8
Attention: Town Clerk
Re: 800 MHz Radio Communiciations System
Fire and Emergency Services
Ownership, Operation and Maintenance Agreement
Project Implementation Agreement
Further to our communications respecting the above agreements and receipt of notification of the requisite
approvals from each party to the execution of them, I am pleased to enclose one fWl~... .~..~1!t~~~~'liYfllf'N>-"""-~
each of the Ownership, Operation and Maintenance Agreement and Project Impl~I1)~6.fcltion ~gr~m~'rit With!
respect to the joint 800 MHz Radio Communiciations System. i (,lu;h"....,'"..,.._._~,.~.~ I
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COPIES
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The Corporation of the City of Oshawa
Legal and Real Estate Services
50 Centre Street South, Oshawa, Ontario L 1 H 3Z7
TEL: (905) 436-3856, FAX: (905) 436-5689
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Should you ha . any questions with respect to these Agreements, kindly contact me.
/{
c. S. Krane, City Clerk, City of Oshawa
J. Rebly, Solicitor, Pickering
R. Hawkshaw, Solicitor, Whitby and Ajax
D. Hefferon, Solicitor, Clarington
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THIS OWNERSHIP, OPERA nON AND MAINTENANCE AGREEMENT made this 27th day
of March, 2002
BET WEE N:
THE CORPORATION OF THE TOWN OF AJAX
("Ajax")
- and -
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
("Clarington")
- and -
THE CORPORATION OF THE CITY OF OSHA W A
("Oshawa")
- and -
THE CORPORATION OF THE CITY OF PICKERING
("Pickering")
- and -
THE CORPORATION OF THE TOWN OF WHITBY
("Whitby")
WHEREAS Oshawa currently owns, maintains and operates an 800 MHz trunked emergency
radio system that currently services the geographic boundaries of the City of Oshawa;
AND WHEREAS Ajax, Clarington, Pickering and Whitby currently provide emergency and fire
department radio services in their respective municipalities using different technology;
AND WHEREAS the parties wish to jointly operate an 800 MHz trunked emergency radio
SYSTEM for their respective emergency services and fire departments which will serve the
combination of the geographic areas over which each party has jurisdiction;
AND WHEREAS Oshawa's current system has the capacity to accommodate the other parties
provided additional equipment and software are provided by the other parties in accordance with
the provisions ofthe "Motorola Agreement" as hereafter defined;
AND WHEREAS Ajax, Clarington, Oshawa, Pickering and Whitby will enter into a
Communications System Agreement with Motorola Canada Limited ("Motorola") for the
provision of equipment and software sufficient to allow the expansion ofthe system currently
maintained by Oshawa (the "Motorola Agreement") to serve the geographic areas over which
each party to this AGREEMENT has jurisdiction;
AND WHEREAS the parties desire to enter into an agreement with respect to the ownership,
maintenance and operation of the SYSTEM;
NOW THEREFORE in consideration of the premises, mutual covenants and conditions herein
contained, the parties hereto AGREE AS FOLLOWS:
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Section 1
Interpretation
1.1 Wherever a term set out below appears in the text of this AGREEMENT in capital letters..
the tenn 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) APPROVED SYSTEM BUDGET means the budget for the operation, maintenance and
capital replacement of the SYSTEM, or any portion of it, as approved by every parties'
Municipal Council, or pursuant to the Dispute Resolution Section, in accordance with this
AGREEMENT.
(c) COMMITTEE means a committee comprised of one representative from each party and
each representative, including the Chair, shall have only one vote.
(d) COST RECOVERY means the actual disbursements of Oshawa in operation and
maintenance of the SYSTEM and, where such services are provided by employees of
Oshawa with the prior approval of the COMMITIEE, the costs of such employees shall
be equal to the product of 1.45 multiplied by the hourly salary of the employees who
perform the services, multiplied by the number of hours the employees were engaged in
performing the services.
(e) EMERGENCY REPAIRS means repairs without which a failure of the SYSTEM, or
any portion or component of the SYSTEM, occurs or is imminent and leaves or would
leave any portion of the geographic area served by the SYSTEM without reliable service.
(f) FINAL PROJECT ACCEPTANCE means SYSTEM ACCEPTANCE has occurred
and all deliverable and other work required under the Motorola Agreement has been
completed.
(g) LICENCE means the licence for the operation of the SYSTEM as issued by Industry
Canada or any other agency or authority of the Government of Canada having
jurisdiction to do so.
(h) PRIMARY SITE and CO-LOCATED REMOTE SITE have the same meaning as in
the Motorola Agreement.
(i) SUBSCRIBER EQUIPMENT means portable and mobile radios owned and used by a
party for the purposes of its emergency services or fire departments within the geographic
area over which the party has jurisdiction and includes additions to and upgrades made
from time to time to such portable and mobile radios.
(j) SUPPLEMENTARY APPROVED SYSTEM BUDGET means the budget for the
operation, maintenance and capital replacement of the SYSTEM, or any portion of it, as
approved by every parties' Municipal Council following approval of the APPROVED
SYSTEM BUDGET for the same calendar year.
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(k) SYSTEM means the Equipment and Software, as defined in the Motorola Agreement,
inclusive of the Equipment to be installed at the PRIMARY AND CO-LOCATED
REMOTE SITE, the Pickering! Ajax Remote Centre and the Remote Sites as detailed in
Exhibit C-l to the Motorola Agreement and includes the five (5) channel 800 MHz
trunked emergency radio system currently operated by Oshawa's emergency services and
fire department together providing a nine (9) channel 800 MHz trunked emergency radio
system to serve the combined geographic areas over which each municipal party has
jurisdiction, as may be modified, replaced or upgraded from time to time, but does not
include:
i) SUBSCRIBER EQUIPMENT of any party;
ii) the Pickering! Ajax Remote Dispatch Centre as described in Exhibit C-l
to the Motorola Agreement; or
iii) the Oshawa Fire Hall # 1 Communications Centre as described in Exhibit
C-l to the Motorola Agreement.
(I) SYSTEM ACCEPTANCE means that the Acceptance Tests, as defined in the Motorola
Agreement, have been successfully completed in accordance with the Motorola
Agreement.
(m) TAXES means all taxes, rates, local improvement rates, impost charges, duties,
assessments or levies which may be levied, rated, charged or assessed against any form of
property, regardless of whom is responsible for payment, whether imposed by federal,
provincial, municipal (including the parties), school boards, or other authorities, and
whether now or in the future in existence with respect to the SYSTEM or the land,
buildings or structures to which the SYSTEM, or any component of it, may be attached.
Without limitation, this includes any other taxes, rates, duties, assessments, fees or levies
which may be imposed on any or all of the parties on account or in lieu of TAXES,
whether or not they are secured against property, or of a nature similar to those taxes, and
whether recurring annually, or at other intervals, or on a special or single instance basis
only.
Section 2
Ownership
2.1 On the date on which title to the "Equipment" and "Software" are shipped by Motorola to
the "Customer" as provided in the Motorola Agreement, the SYSTEM will be jointly
owned by all of the parties in equal shares and operated and maintained for the benefit of
every party to this AGREEMENT.
2.2 On terms as approved by the COMMITTEE, the parties shall jointly apply for and hold
the LICENCE however, where the applicable agency of the Government of Canada
having jurisdiction over the LICENCE requires only one legal entity to hold the
LICENCE, Oshawa shall apply for and hold the LICENCE in trust for the benefit of itself
and every other party to the AGREEMENT.
2.3 Any licences or leases of land or a facility obtained for the placement of any component
of the SYSTEM on the property of a person who is not a party to this AGREEMENT
shall be held jointly and equally by all of the parties but, where the COMMITTEE agrees
unanimously, such rights and agreements may be held by Oshawa in trust for the benefit
of itself and every other party to the AGREEMENT.
2.4 The rights in the trunk lines connecting the various components of the SYSTEM and any
equipment that is not part of the SYSTEM shall be held jointly and equally by all of the
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parties but, where the COMMITTEE agrees unanimously, such rights and agreements
may be held by Oshawa in trust and for the benefit of every party to this AGREEMENT.
2.5 Any SUBSCRIBER EQUIPMENT, as provided under the Motorola Agreement, shall be
the sole property of the party identified as paying for same and/or receiving same under
Exhibit C-2 of the Motorola Agreement.
Section 3
Operation
3.1 Oshawa, having custody of the PRIMARY AND CO-LOCATED REMOTE SITE, will
be the primary operator of the SYSTEM subject to direction of the COMMITTEE, and as
such will be responsible for carrying out day to day operation and maintenance of the
SYSTEM to the standards as approved by the COMMITTEE from time to time. The
location of the PRIMARY SITE and CO-LOCATED REMOTE SITE cannot be changed
except with the unanimous consent of all of the parties to this AGREEMENT.
3.2 Oshawa through the Administrative Co-ordinator as appointed under an agreement
between the parties dated March 27,2002 titled Project Implementation Agreement, shall
continue to work with Motorola to bring about FINAL PROJECT ACCEPTANCE
following the tennination of the Project Implementation Agreement upon SYSTEM
ACCEPTANCE under the guidance and direction of the COMMITIEE.
3.3 Notwithstanding the generality of Article 3.1, Oshawa will provide the following services
(as approved by the COMMITTEE where advance approval of the COMMITTEE is
necessary under this AGREEMENT) in accordance with standards as detennined by the
COMMITTEE from time to time, in respect of the operation and maintenance of the
SYSTEM, but at all times in accordance with the APPROVED SYSTEM BUDGET:
a) Making application for, and holding, the LICENCE necessary to operate the
SYSTEM from the applicable authority together with any renewals thereof;
b) If commercially available, contracting for the placement of insurance for the
replacement cost of the SYSTEM as the result of damage through one or more
policies of insurance provided that all parties hereto shall be named as insured
parties to the extent of their respective interests in the SYSTEM;
c) If commercially available, contracting for the placement of a general liability
policy of insurance naming each party as insured with respect to liability
resulting from the operation and maintenance of the SYSTEM.
d) Arranging for the supplying of electrical power for the SYSTEM including back-
up uninterruptable power supply and executing any necessary agreements
therefor;
e) Arranging for regular inspections of the SYSTEM and contracting for reasonable
maintenance and repair from time to time in accordance with the applicable
standards approved by the COMMITTEE;
t) Conducting audits of the condition of the SYSTEM at least once every five (5)
years and reporting on the condition to the COMMITTEE;
g) Negotiating agreements for space for components of the SYSTEM located on
third party owned lands or structures on tenns approved by the COMMITTEE in
advance; and
h) Providing Infonnation Technology support and maintenance of software not
covered by agreements with third parties, including Motorola.
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3.4 All costs of the operation and maintenance of the SYSTEM will be shared equally by all
of the parties and will include, but are not limited to:
(a) Application and fees for the LICENCE for the SYSTEM, but not including fees
for any licence for the operation of SUBSCRIBER EQUIPMENT;
(b) Cell site tower licence or rental fees;
(c) Telephone line charges;
(d) Repairs to, or replacement of, the SYSTEM or any portion of the SYSTEM;
(e) Insurance;
(f) Maintenance of and upgrading to both software and hardware;
(g) Any TAXES levied against Oshawa or any other party with respect to the
existence, maintenance or operation of the SYSTEM;
(h) Costs of Oshawa employees, contractors and agents in performing the operation
and maintenance obligations under this AGREEMENT as approved by the
COMMITTEE in advance; and
(i) Any deductible on any policy of insurance referred to in Articles 3.3 or 9.1 where
a claim is made on behalf of all of the parties under that insurance.
3.5 Oshawa will provide the above services, to the extent the services are provided by the
employees, contractors and agents of Oshawa, on the basis of COST RECOVERY only,
less its share of the cost.
3.6 Oshawa shall keep proper and detailed accounts and records in accordance with generally
accepted accounting practices, where applicable, of all factors entering into the
computation of the amounts payable pursuant to this AGREEMENT. Any or all other
parties may, during regular business hours at the offices of Oshawa, upon giving
reasonable notice and at that party's sole expense, audit and inspect accounts, records,
receipts, vouchers and other documents relating to the services performed pursuant to this
AGREEMENT and shall have the right to make copies and take extracts at its own
expense. Oshawa shall afford all reasonable facilities, physical and otherwise, for such
audits and inspections.
Section 4
Additional Responsibilities of the Parties
4.1 Subject to additional agreements as may be executed by the parties, each party will be
solely responsible for all of the expenses relating to:
(a) The licence feesto licence that party's SUBSCRIBER EQUIPMENT;
(b) All line and usage fees from the PRIMARY and CO-LOCATED REMOTE SITE
to the specific fire service dispatch centre servicing that party's area of
jurisdiction;
(c) Replacement, maintenance and repair of its own SUBSCRIBER EQUIPMENT
including battery replacement; and
(d) Its own phone use and line costs
and such expenses shall not form a part of the expenses of maintaining and operating the
SYSTEM or the APPROVED SYSTEM BUDGET or any SUPPLEMENTARY
APPROVED SYSTEM BUDGET.
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4.2 Each party agrees to maintain those lands, buildings or structures that may be either
owned by or leased or licensed to that party that accommodate a portion of the SYSTEM
to the standards set out in the Motorola Agreement.
4.3 Each party (the "Licencing Party") hereby provides a licence to every other party to
permit the installation, maintenance and replacement of those portions of the SYSTEM
that are installed in accordance with the Motorola Agreement on lands, buildings or
structures that may be either owned by or leased or licensed to the Licencing Party. No
fees shall be charged to any other parties for this licence.
4.4 Each party agrees to maintain its SUBSCRIBER EQUIPMENT to a reasonable standard
and not to introduce incompatible SUBSCRIBER EQUIPMENT to the SYSTEM or other
equipment or software which may compromise the functionality or the integrity of the
SYSTEM, the intention being that the SYSTEM will function in accordance with the
intent of the Motorola Agreement.
Section S
Governance
5.1 No evidence of the authority of any person who purports to represent the interests of a
party at a meeting of the COMMITTEE shall be required or called for.
5.2 In the absence of a COMMITTEE member, the municipality that the absent member
represents may send an alternate member at any time who shall be entitled to vote in the
same capacity as the absent member except where the absent member is the Chairperson,
in which case the Vice-Chairperson shall have all of the powers of the Chairperson.
5.3 The COMMITTEE shall appoint from its members a Chairperson and a Vice-
Chairperson who shall each serve in those capacities for twelve (12) consecutive months
unless either or both resign earlier, in which case a replacement(s) will be appointed by
the COMMlTIEE from its members at the earliest opportunity.
5.4 Meetings of the COMMITTEE may be called either at the request of the Chairperson or
the request of at least two members of the COMMITIEE, in writing, on no less than
three (3) days advance written notice to all of the parties.
5.5 Meetings of the COMMITTEE shall be presided over by the Chairperson, who shall
conduct the meeting in accordance with Robert's Rules of Order unless otherwise agreed
by every member of the COMMITTEE.
5.6 All meetings of the COMMITIEE shall be held within the geographic area serviced by
the SYSTEM.
5.7 The COMMITTEE shall not be entitled to conduct business where any less than one
representative of every party is present (a "Quorum") except that where a meeting of the
COMMITTEE is properly called and a Quorum cannot be achieved, the meeting will be
adjourned to a date not less than three (3) days in the future, and notice of the
adjournment shall be provided to each party. Where a meeting at which a Quorum was
not achieved has been adjourned, the COMMITTEE may lawfully conduct business on
the adjourned meeting date, provided a majority of the members are then present.
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5.8 Provided that any monies expended pursuant to any of the actions listed in this Article do
not exceed the amount set out therefor in the APPROVED SYSTEM BUDGET or the
SUPPLEMENTARY APPROVED SYSTEM BUDGET for that same calendar year, the
COMMITIEE, on behalf of each party, shall have the full authority to do the following:
(a) Authorize the lease or licence of any sites to accommodate any portion of the
SYSTEM;
(b) Authorize the entering into of agreements for the operation and/or maintenance
of the SYSTEM;
(c) Authorize the entering into of any software or equipment maintenance or upgrade
contracts following consultation with Oshawa's Information Technology Branch;
(d) Authorize the carrying out of any SYSTEM condition audits;
(e) Authorize agreements for replacement of the SYSTEM or any component thereof
in accordance with the City of Oshawa purchasing By-laws and operational
requirements in force from time to time, unless waived, in which case purchases
shall proceed in accordance with the purchasing procedures as determined by the
COMMITIEE on a unanimous vote of the members thereof;
(f) Determine the standards of maintenance and operation of the SYSTEM. from
time to time.
Contracts and agreements authorized under this Article 5.8 by the COMMITIEE shall be
entered into jointly and equally by all of the parties but, where the COMMITIEE agrees
unanimously, such rights and agreements may be entered into by Oshawa in trust for the
benefit of every party to this AGREEMENT.
As soon as possible after the execution of this AGREEMENT, each party, other than
Oshawa, will amend its purchasing by-Iaw(s) to make it inapplicable to purchases and
agreements made under Article 5.8.
5.9 Notwithstanding that an amount may not be provided in the APPROVED SYSTEM
BUDGET or a SUPPLEMENTARY APPROVED SYSTEM BUDGET, the
COMMITIEE, by unanimous decision of its members, may authorize the carrying out of
EMERGENCY REPAIRS to the SYSTEM, or any component of the SYSTEM, in
accordance with Oshawa's purchasing By-laws and operational requirements, unless
waived, and may utilize any amount in the capital reserve account to carryout the
EMERGENCY REPAIRS and immediately provide appropriate documentation to the
Treasurer of each party regarding the use of the capital reserve account.
5.10 Recommendations and decisions of the COMMITIEE shall be made by written
resolution to be passed by a majority of those in attendance at a properly called meeting
unless otherwise provided in this AGREEMENT. The COMMITTEE shall keep and
provide copies of all resolutions of the COMMITIEE to each party.
5.11 The COMMITTEE, or any member thereof, is hereby authorized to meet with
representatives of other municipalities in Durham Region that are interested, with the
objective of expanding the service area of the SYSTEM. Following such discussions, the
COMMITIEE shall report to the Municipal Councils of the parties concerning any
proposed amendments to this AGREEMENT resulting from the proposed admission of
future parties.
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5.12 The COMMITTEE shall have no authority to modify or revIse the terms of this
AGREEMENT.
Section 6
Budget
6.1 The COMMITTEE, in consultation with the Treasurer of each party and the Fire Chief
for Oshawa, shall prepare draft recommended annual operating and capital budgets
setting out estimated operating and capital costs for the SYSTEM. The estimates shall be
submitted to the Municipal Councils of the parties for consideration by October III of
each year with respect to the budgets for the immediately succeeding calendar year.
6.2 Upon reviewing the estimates, the parties' Municipal Councils shall establish an overall
budget for the operation and maintenance of the SYSTEM for the purposes herein
described and, in doing so, the Municipal Councils are not bound to adopt the estimates
submitted by the COMMITTEE.
6.3 Upon approval of the APPROVED SYSTEM BUDGET by every parties' Municipal
Council, each party hereby agrees to pay to Oshawa, and Oshawa agrees to allocate its
share equal to, 1/5 of the said budget in four equal installments on the fifteenth (15th) day
of each of the months of April, June, August, and November, in the calendar year to
which the APPROVED SYSTEM BUDGET relates, unless otherwise agreed by the
parties. In the event of EMERGENCY REPAIRS where the capital reserve acco~ is
utilized, Oshawa shall provide each of the other parties with a written invoice which
details the amount so utilized, and each party agrees to provide to Oshawa, and Oshawa
agrees to allocate its share equal to, 1/5 of the amount used prior to the end of the next
budget year.
6.4 In addition to the actual estimated annual operating and capital costs of the SYSTEM
each party will contribute equal annual amounts to be agreed upon to fund a capital
reserve account, to be held by Oshawa and invested for the benefit of all of the parties in
accordance with the requirements of the Municipal Act. Oshawa shall have the duty to
invest the capital reserve fund, but capital preservation shall be the primary objective, not
revenue, and Oshawa shall not be subject to any obligations or restrictions as contained in
the Trustee Act, R.S.O. 1990 c. T.23 (or any successor legislation). Subject to Section
5.9, this reserve account will only be used in accordance with the APPROVED SYSTEM
BUDGET and is intended for major capital replacement or repair of the SYSTEM, or any
of its components. Oshawa shall provide each of the parties with a statement of annual
activities respecting the capital reserve account by June 151 of the following calendar year.
6.5 In the event of a failure of any party's Municipal Council to agree on an APPROVED
SYSTEM BUDGET by March 31 of any year for that same calendar year, the amount of
the budget will be established in accordance with the Section of this AGREEMENT titled
Dispute Resolution. Upon the determination of the APPROVED SYSTEM BUDGET in
accordance with the Dispute Resolution Section, each party shall provide payment toward
its share of the said budget in accordance with the installments provided for under 6.3 as
though the APPROVED SYSTEM BUDGET had been approved by March 31 of that
same year. In the interim, until the APPROVED SYSTEM BUDGET is establish by
Dispute Resolution, the parties shall proceed on the basis that the APPROVED SYSTEM
BUDGET for any calendar year shall be at least equal to the APPROVED SYSTEM
BUDGET for the immediately preceding year and will advance payments to Oshawa in
accordance with that understanding on the dates provided for in Article 6.3.
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6.6 In the event of a shortfall in the APPROVED CAPITAL BUDGET, the COMMITIEE
shall advise the Municipal Council of each party immediately upon such shortfall or
potential shortfall being determined and shall submit a draft SUPPLEMENTARY
APPROVED SYSTEM BUDGET for the immediate consideration of each party's
Municipal Council and in the event of a failure of any party's Municipal Council to agree
on a SUPPLEMENTARY APPROVED SYSTEM BUDGET within thirty (30) days
following receipt of the draft SUPPLEMENTARY APPROVED SYSTEM BUDGET by
that party, the amount of the budget will be established in accordance with the Section of
this AGREEMENT titled Dispute Resolution. Upon the determination of the
SUPPLEMENTARY APPROVED SYSTEM BUDGET in accordance with the Dispute
Resolution Section or otherwise, each party shall provide payment to Oshawa of, and
Oshawa agrees to allocate its share equal to, 115 of the total increase as contained in the
SUPPLEMENTARY APPROVED SYSTEM BUDGET within five (5) days following
such determination.
6.7 Any amount of uncommitted or unspent funds at the end of the calendar year as
contained in the APPROVED SYSTEM BUDGET shall be applied against the
immediately following year's budget requirement.
Section 7
Term
7.1 The Term of this AGREEMENT shall commence on the date in which SYSTEM
ACCEPTANCE is memorialized by the execution of a System Acceptance Certificate as
defined and in accordance with section 6.2 of the Motorola Agreement. Except as
provided in Article 7.5, this AGREEMENT will continue in effect until it is terminated
by further agreement in writing of every party to it.
7.2 At least once prior to each ten (10) year anniversary of the execution of this
AGREEMENT, and immediately following the confirmation of the effective date of the
amalgamation of one party to another party or the annexation of any territory or
territories of either a party or a non-party municipality to another party following the date
of this AGREEMENT, the Committee shall review its provisions taking into account
technical and other material considerations that then apply and shall recommend to the
Municipal Council of each party whether this AGREEMENT should be terminated or
whether any of its provisions, including the ownership shares and cost sharing provisions
and the basis thereof, should be amended. The report and recommendations of the
COMMITIEE shall be considered by the Municipal Councils of each party within thirty
(30) days following receipt of the COMMITIEE's report by that party, and within the
same period each party shall decide whether this AGREEMENT should be terminated or
amended.
7.3 If, in the case of an amalgamation or annexation referred to in Article 7.2, the Municipal
Councils of the parties do not agree with the recommendations of the COMMITTEE to
terminate or amend this AGREEMENT, the parties shall meet within five (5) days to
settle the terms of the question or questions that will be referred for resolution by Dispute
Resolution under Section 8. If agreement of every party to such question or questions is
not achieved within such period, the issue of the content of the question or questions to
be determined by Dispute Resolution may be taken by any party to Dispute Resolution by
giving notice in accordance with Section 8 of this AGREEMENT and the context of the
question or questions shall be determined by Binding Arbitration thereunder.
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Notwithstanding the foregoing the question of termination of this AGREEMENT shall
not be referred to Dispute Resolution, but shall only be determined exclusively by
agreement of all the parties.
7.4 No party may withdraw from the joint ownership, operation or maintenance of the
SYSTEM without the consent of every party.
7.5 In the event that the SYSTEM, or any component of it, is destroyed or damaged, the
parties will use any funds under a policy of insurance that is contracted for under this
AGREEMENT, to completely replace the SYSTEM or the damaged component and, to
the extent that any insurance funds fail to completely cover the cost of the repair or
replacement, each party will contribute an equal portion to the shortfall unless, where it is
the SYSTEM as a whole that must be replaced, and a majority of the parties do not wish
to replace the SYSTEM, in which case any insurance proceeds will be divided equally
between the parties and this AGREEMENT will be terminated.
Section 8
Dispute Resolution
8.1 If there is dispute between the parties to this AGREEMENT with respect to any matter,
including, but not limited to, the interpretation of this AGREEMENT or the establishment
of budgets, the adequate funding of reserve accounts or the perceived failure to meet or
maintain reasonable service levels, but excluding matters determined by, and within the
authority of, the COMMITIEE in accordance with Section 5, the parties, as represented
by their respective City Managers/Chief Administrative Officers, 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 each of the others with the objective of resolving any
dispute.
8.2 Following meetings of the parties 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 parties, any party may issue a Notice Requesting Arbitration to
the other in which event the parties shall proceed to Binding Arbitration and the
provisions for proceeding with Binding Arbitration set out within Appendix "I", attached
hereto and forming a part of this AGREEMENT, shall be followed.
8.3 Notwithstanding that a matter has been referred to Dispute Resolution under the
provisions ofthis Section, the parties shall throughout the period of dispute resolution
endeavour to perform their respective obligations under the terms of this AGREEMENT
to the best of their abilities and in good faith.
Section 9
Indemnity and Insurance
9.1 Oshawa agrees to maintain general liability insurance in an amount of not less than
twenty five million dollars ($25,000,000) against legal liability that may result from the
operation and maintenance of the SYSTEM and to ensure that all polices of insurance are
endorsed to provide that every party to this AGREEMENT is named as an additional
insured. The cost of this insurance shall be included in the APPROVED SYSTEM
BUDGET. The policy shall contain a no subrogation clause in favour ofthe parties and a
no cross-liability clause, both as satisfactory to the Treasurers of the parties.
11
9.2 With regard to any third party claim in excess of the policy limits of any insurance placed
under this AGREEMENT, each party hereby agrees to indemnify and hold harmless each
and every other party against all actions, suits, claims, demands, losses, costs, charges
and expenses including legal costs (hereinafter the "claims"), arising out of or in
consequence of that indemnifying party's individual obligations in the operation and
maintenance of the SYSTEM as provided for in this AGREEMENT, except that where
such claims are caused by the gross negligence of one or more parties, those parties who
are grossly negligent shall not be indemnified by the other parties with respect to the
claims, but those parties who are grossly negligent shall continue to indemnify all
innocent parties with respect to the claims. The terms and provisions of this Article shall
survive any termination of this AGREEMENT.
9.3 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 date of this AGREEMENT against any party
shall remain the sole liability of that party, shall not be transferred hereunder and that
party shall wholly indemnify the other parties with respect to any and all liability,
including defence and legal costs pertaining thereto.
Section 10
Notice
10.1 Any notice under this AGREEMENT shall be in writing and shall be served personally
by regular mail or facsimile transmission upon each of the parties at the following
addresses:
The Corporation of the Town of Ajax
65 Harwood Ave. South
Ajax, Ontario Ll S 2H9
Fax: 905-683-8119
Attention:
The Corporation of the Municipality of Clarington
40 Temperance Street
Bowmanville, Ontario L 1 C 3A6
Fax: 905-623-0584
Attention:
The Corporation of the City of Oshawa
50 Centre Street South
Oshawa, Ontario LlH 3Z7
Fax: 905-436-5623
Attention: Commissioner of Corporate Services
The Corporation of the City of Pickering
One The Esplanade
Pickering, Ontario L 1 V 6K 7
Fax: 905-839-6327
Attention:
The Corporation of the Town of Whitby
12
575 Rossland Road East
Whitby, Ontario UN 2M8
Fax: 905-686-7005
Attention:
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 11
Dispatch Services by Oshawa
11.1 Prior to May 15, 2002, Oshawa and Clarington, and Oshawa and Whitby shall endeavour
in good faith to prepare and execute agreements respecting the provision of dispatch
services by Oshawa to each ofClarington and Whitby on a fee-for-service basis from the
Oshawa Fire Hall # 1 Communications Centre as described in Exhibit C-l to the Motorola
Agreement.
Section 12
General
12.1 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.
12.2 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.
12.3 Subject to the requirements of the Municipal Freedom of Information and Protection of
Privacy Act, R.S.O. 1990 c. M.56 (or successor legislation), 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.
12.4 This AGREEMENT contains the entire agreement between the parties with respect to the
ownership, operation and maintenance of the SYSTEM following the date of SYSTE~t
ACCEPTANCE and it is agreed that there is no covenant, promise, agreement, condition
13
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.
12.5 The parties hereto shall with reasonable diligence do all such things and provide all such
reasonable further assurances as may be required to fulfill their obligations 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.
12.6 The rights and obligations as contained within this AGREEMENT shall accrue and apply
severally to and against each of Ajax, Clarington, Oshawa, Pickering and Whitby and the
failure on the part of one party to comply with the terms of this AGREEMENT shall not
be taken as a failure on the part of any other party or parties. The rights of each party may
be severally enforced.
12.7 No supplement, amendment or waiver of or under this AGREEMENT (excepting notice
of change of address as contemplated in Section 10) 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.
12.8 Notwithstanding anything in this AGREEMENT, no party shall be in default with respect
to the performance of any of the terms of this AGREEMENT if any non-performance is
due to any force majeure, strike, lock-out, labour dispute, civil commotion, war or similar
event, invasion, the exercise of military power, act of God, government regulations or
controls, inability to obtain any material or service, or any cause beyond the reasonable
control of the party, unless such lack of control results from a deficiency in financial
resources.
12.9 This AGREEMENT shall enure to the benefit of and be binding upon the parties and
their respective successors and assigns.
12.10 The parties shall act co-operatively in good faith, and with expedition in implementing
the intent of this AGREEMENT.
12.11 No party shall commence "Beneficial Use" of the System or any part thereof prior to
SYSTEM ACCEPTANCE under section 8 of the Motorola Agreement.
12.12 Time shall be of the essence of this AGREEMENT.
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, in counterparts, by
the execution of Schedules "A", "B", "C", "D" and "E" hereto by Ajax, Clarington, Oshawa,
Pickering and Whitby, respectively.
Schedule "A"
Si2natorv Pa2e for the Town of Aiax
This is Schedule "A" to the Ownership, Operation and Maintenance Agreement between the
Corporation of the Town of Ajax, the Corporation of the Municipality ofClarington, the
Corporation of the City of Oshawa, the Corporation of the City of Pickering and the Corporation
of the Town ofW. dated March 27,2002.
~
9i&k .
13
Schedule "B"
Sh!natorv Pa2e for the Municipalitv of Clarin2ton
This is Schedule "B" to the Ownership, Operation and Maintenance Agreement between the
Corporation of the Town of Ajax, the Corporation of the Municipality ofClarington, the
Corporation of the City of Os haw a, the Corporation of the City of Pickering and the Corporation
of the Town of Whitby dated March 27, 2002.
THE CORPORATION OF THE
MUMtll :;;;;::GTON
. _ Mayor
. .
25
but with which the expert was provided in order to prepare the expert's report, and a
description and location of those documents, goods or other property.
42. If a party requests or if the Arbitral Tribunal considers it necessary, the expert shall, after
delivery of the expert's ~Titten or oral report, be present at an oral hearing where the
parties will have the opportunity to cross-examine the expert and call evidence in
rebuttal.
Default ofPartv
43. Where althe Claimant(s), without sufficient cause, and after five (5) days written notice
from the Arbitral Tribunal, fails to communicate the Claimant(s)' statement of claim
within the required time, the Arbitral Tribunal may terminate the Arbitral Tribunal with
respect to that claim.
44. Where the Respondent(s), without sufficient cause and after five (5) days written notice
from the Arbitral Tribunal, fail(s) to communicate the Respondent(s)' statement of
defence within the required time, the Arbitral Tribunal shall continue the Arbitration. An
award shall not be made solely on the default of the Respondent(s). The Arbitral
Tribunal shall require the Claimant(s) to submit such evidence as the Arbitral Tribunal
may require for the making of the award.
45. Where a party, without sufficient cause, fails to appear at an oral hearing or fails to
produce documentary evidence, the Arbitral Tribunal may continue the Arbitration and
the Arbitral Tribunal shall make an award based upon the evidence before the Arbitral
Tribunal.
46. Where a party, without sufficient cause, fails to comply with any order or direction of the
Arbitral Tribunal or any requirement under the Arbitration Act, 1991 or this Schedule,
the Arbitral Tribunal may grant such relief as the Arbitral Tribunal deems appropriate,
including costs.
General Powers of Arbitral Tribunal
47. The Arbitral Tribunal may:
(a) order an adjournment of the proceedings from time to time;
(b) make an interim order on any matter with respect to which the Arbitral Tribunal
may make a final order, including an interim order for the preservation of
property which is the subject matter of the dispute;
(c) order "on site" inspection of documents, exhibits or other property;
(d) at any.time extend or abridge a period of time required in this Schedule or fixed
or determined by the Arbitral Tribunal where the Arbitral Tribunal considers it
just and appropriate in the circumstances.
Representation
~. .
26
48.
The parties may be represented or assisted by any person during Arbitration.
49.
Where a party intends to be represented or assisted by a lawyer, the parties shalI, in
writing, advise the other party of the lawyer's name and the capacity in which the lawyer
is acting, at least five (5) days before any scheduled meeting or hearing.
Award of Arbitral Tribunal
50. Unless the parties otherwise agree, the award of the Arbitral Tribunal must be made
within ninety (90) days of the first Arbitral Tribunal meeting.
51 . The award of the Arbitral Tribunal will be rendered in writing and will contain a recital
of the facts upon which the award is made and the reasons.
Miscellaneous
52. The language of the Arbitration will be English.
53. Nothing contained in these rules prohibits a party from making an offer of settlement
during the course of the Arbitration.
54. The award of the Arbitral Tribunal shall include a determination of the allocation
between the parties of the costs of the Arbitration. In determining the allocation between
the parties of the costs of the Arbitration, including the professional fees of the Arbitral
Tribunal and the administrative costs associated with the Arbitration, the Arbitral
Tribunal may invite submissions as to costs and may consider, among other things, an
offer of settlement made by a party to the other party prior to or during the course of the
Arbitration. Unless otherwise directed by the Arbitral Tribunal, all costs of the Arbitral
Tribunal will be paid equally by the Claimant(s) and the Respondent(s).
THIS PROJECT IMPLEMENTATION AGREEMENT made this 27th day of March, 2002
BETWEEN:
THE CORPORATION OF THE TOWN OF AJAX
("Ajax")
- and -
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
("Clarington")
- and -
THE CORPORATION OF THE CITY OF OSHA W A
("Oshawa")
- and -
THE CORPORATION OF THE CITY OF PICKERING
("Pickering")
- and -
THE CORPORATION OF THE TOWN OF WHITBY
("Whitby")
WHEREAS Ajax, Clarington, Oshawa, Pickering and Whitby will enter into a Communications
System Agreement with Motorola Canada Limited on March 27, 2002 (the "Motorola
Agreement") for the purchase and installation of software and equipment to be combined with the
existing five (5) channel 800 MHz trunked radio system currently operated by Oshawa to create a
nine (9) channel 800 MHz trunked radio system to serve the geographic areas over which each
municipal party has jurisdiction;
AND WHEREAS Oshawa has been designated as the Project Manager pursuant to Article 6.1 of
the Motorola Agreement;
AND WHEREAS the parties wish to establish a COMMIITEE of representatives of the parties
for the purposes of overseeing and coordinating the implementation and successful completion of
the Motorola Agreement and to define the Terms of Reference of that COMMITTEE;
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.
2
(b) COMMITTEE means a committee comprised of an Administrative Co-ordinator and an
Operation Project Manager, both of whom will be employees of Os haw a, and one
representative and one alternate representative from each of Ajax, Clarington, Pickering
and Whitby, who shall be management level employees ofthe party so appointing them,
with the roles and responsibilities provided under this AGREEMENT.
(c) MOSCAD means a MOSCAD-L Low Capacity Fire Hall Alerting System as further
described in Exhibit C-6 to the Motorola Agreement.
(d) PRIMARY and CO-LOCATED REMOTE SITE means Oshawa City Hall located at
50 Centre Street South, Oshawa, Ontario.
(e) SUBSCRIBER EQUIPMENT means the portable and mobile radios and accessory
equipment owned and used by each party within the geographic area over which the party
has jurisdiction.
(f) SYSTEM means the Equipment and Software as defined in the Motorola Agreement,
inclusive of the Equipment to be installed at the PRIMARY and CO-LOCATED
REMOTE SITE, the Pickering! Ajax Remote Centre and remote transmit/receive sites, as
detailed in Exhibit C-l to the Motorola Agreement and includes the five (5) channel 800
MHz trunked emergency radio system currently operated by Oshawa, together providing
a nine (9) channel 800 MHz trunked emergency radio system to serve the combined
geographic areas over which each municipal party has jurisdiction
(g) SYSTEM ACCEPTANCE means that the Acceptance Tests, as defined in the Motorola
Agreement, have been successfully completed.
Section 2
Committee Role
2.1 The Role of the Committee is to oversee the implementation of the Motorola Contract to
the point of SYSTEM ACCEPTANCE.
2.2 Oshawa, through the Administrative Co-ordinator and the Operational Project Manager,
will assume the role of Project Manager as set out in the Motorola Agreement and will be
responsible, following consultation with the COMMITTEE, for determining the
achievement of Milestones as listed in Exhibit C-3 to the Motorola Contract (Statement
of Work) and signing off the documents set out in Section 6.0 of that Exhibit.
2.3 In the absence of a COMMITTEE member, the party that the absent member represents
may send an alternate member at any time who shall be entitled to vote in the same
capacity as the absent member.
2.4 No evidence of the authority of any person who purports to represent the interests of a
party at a meeting of the COMMITTEE shall be required or called for.
2.5 The COMMITTEE shall have the authority to make decisions with respect to
administrative or technical issues within the limits of the Motorola Agreement, including
authorizing the execution of Change Orders thereunder by the Administrative Co-
ordinator that, cumulatively, do not result in an increase of more than five per cent (5%)
3
of the total contract price as contained in Exhibit C-2 to the Motorola Agreement,
exclusive of taxes.
2.6 The parties hereby acknowledge and agree that title to all equipment under the Motorola
Agreement passes to them on an equal basis upon shipping. The COMMITIEE shall
ensure that sufficient insurance for full replacement value against theft, loss or damage is
placed on the equipment at all times from the date of shipment by Motorola Canada
Limited and the parties agree that they shall be responsible for the costs of such insurance
equally.
2.7 Each COMMITIEE member, with the exception of the Operational Project Manager,
shall have one vote, including the Chair.
2.8 Meetings of the COMMITTEE may be called either at the request of the Chair or the
request of at least two members of the COMMITTEE, in writing, on no less than three (3)
days advance written notice to all of the parties.
2.9 Meetings of the COMMITTEE shall be presided over by the Chair, who shall conduct the
meetings in accordance with Robert's Rules of Order unless otherwise agreed by every
member of the COMMITTEE, but in any case subject to the requirements of this
AGREEMENT.
2.10 All meetings of the COMMITIEE shall be held within the geographic area serviced by
the SYSTEM.
2.11 The COMMITTEE shall not be entitled to conduct business where any less than one
representative of every party is present (a "Quorum") except that where a meeting of the
COMMITTEE is properly called and a Quorum cannot be achieved, the meeting will be
adjourned to a date not less than three (3) days in the future, and notice of the
adjournment shall be provided to each party. Where a meeting at which a Quorum was
not achieved has been adjourned, the COMMITTEE may lawfully conduct business on
the adjourned meeting date provided a majority of the members are then present.
2.12 Decisions of the COMMITTEE shall be made by resolution to be passed by a unanimous
vote of those in attendance at a properly called meeting.
2.13 The COMMITTEE will develop a media relations plan.
Section 3
Role of the Administrative Co-ordinator
3.1 The Administrative Co-ordinator will be responsible for the overall management of the
project and will Chair the COMMITTEE.
3.2 The Administrative Co-ordinator shall prepare a report at the completion of each
Milestone and refer it to the COMMITTEE for its consideration before agreeing to the
achievement of such Milestone with Motorola Canada Limited.
Section 4
Role of the Operational Project Manager
4
4.1 The Operational Project Manager will manage the technology and installation of the
infrastructure in consultation with the COMMITTEE and the Administrative Co-
ordinator. This person will report to the Administrative Co-ordinator and will schedule
regular meetings and distribute agendas at the l'equest of either the Chair or two
COMMITTEE members, as required in Section 2, and take the minutes of all meetings
and maintain a database of agenda's and minutes from all meetings of the COMMITTEE.
4.2 The Operational Project Manager will be responsible for forwarding minutes from the
meetings of the COMMITTEE to each COMMITTEE member, as well as the Fire Chief
and City Managers/Chief Administrative Officers of each party, as soon as reasonably
possible after each COMMITTEE meeting.
4.3 The Operational Project Manager shall develop and maintain a Project Chart and
schedule of meetings for distribution to all parties and stakeholders external to the parties.
Section 5
Joint Dispatch Operations
5.1 The parties acknowledge that the design of the SYSTEM as described in the Motorola
Agreement has been premised on the creation of two dispatch centres, one to be operated
jointly by Oshawa, Whitby and Clarington, the other to be operated jointly by Pickering
and Ajax (the "Proposed Centres").
5.2 The parties acknowledge that the end of the critical design period for the SYSTEM is
May 15, 2002 upon which date all Equipment necessary to implement the SYSTEM will
be ordered by Motorola under the Motorola Agreement. In the event that a party wishes
to withdraw from the joint operation of one of the Proposed Centres or to install an
additional Remote Dispatch Centre, at that party's sole expense, such party will notify all
other parties of such decision in writing prior to May 15, 2002.
5.3 The parties acknowledge that changes made to the SYSTEM by the requested addition of
additional Remote Dispatch Centres will result in additional costs attributable solely to
the party requesting an additional Remote Dispatch Centre in order for Motorola to
supply the necessary additional equipment and software. There will also be design and
engineering costs that will be the sole responsibility of the party requesting the additional
Remote Dispatch Centre.
5.4 In the event that, as a result of the withdrawal of a party from the joint operation of one of
the two Proposed Centres, the remaining parties operating the Proposed Centre
determine, acting reasonably, that a change order is necessary under the Motorola
Agreement due to the reduced need for software or equipment, and where Motorola
demands a restocking fee or charge as a result of the return of surplus Equipment or
Software (as defined in the Motorola Agreement), such cost shall be the sole
responsibility of the withdrawing party.
5.5 Where a party withdraws from the joint operation of one of the Proposed Centres prior to
SYSTEM ACCEPTANCE, that party's share ofMOSCAD costs, as determined by the
parties acting reasonably, shall be deleted and the MOSCAD costs shall be equally
redistributed among the remaining parties operating the Proposed Centres.
5
Section 6
Financing
6.1 The parties acknowledge that Oshawa, as the Project Manager, although not liable for
payments under the Motorola Agreement, will be issuing a purchase order for the
SYSTEM to Motorola and is responsible for forwarding payments to Motorola on behalf
of Ajax, Clarington, Pickering and Whitby.
6.2 Notwithstanding that Oshawa is not liable for payments under the Motorola Agreement,
in the event that the parties agree to order the MOSCAD Equipment and Services, as
described in the Motorola Agreement, Oshawa covenants to pay its share of MOSCAD
Equipment and Services to Clarington and Whitby upon the shipping of the Equipment
from Motorola's facilities.
6.3 Each of Ajax, Clarington, Pickering and Whitby agree that they are each responsible
under the Motorola Agreement for the total sum as assigned to them in the attached
Appendix "I". Oshawa agrees that it will be responsible for the payment of its share of
MOSCAD Equipment and Services as assigned to it in Appendix "I" provided the parties
agree to order the MOSCAD Equipment and Services.
In the event that the parties are provided with the $100,000 signing discount by Motorola
Canada Limited, as set out in Exhibit C-2 to the Motorola Agreement, the parties
acknowledge that the amounts payable by each of them as set out above shall be reduced
by the discount which will be apportioned to each of the parties except Oshawa, based on
its party's proportionate share of the costs under the Motorola Agreement as assigned to
them in the attached Appendix "I".
In the event that the parties are provided with the $75,000 discount by Motorola Canada
Limited, as set out in Exhibit C-2 to the Motorola Agreement by enabling the completion
of the Detailed Design Review by the date provided for in that Exhibit, the parties shall
agree on the manner of attribution of this discount and, upon a failure to agree within
fifteen (15) days following notification by Motorola Canada Limited that the discount
will be provided, the issue may be settled under the Section of this AGREEMENT titled
Dispute Resolution and, until a decision is rendered thereunder, each party shall pay its
obligations under this AGREEMENT as though the discount had not been provided and
Oshawa will hold any funds in excess of the amount owing under the Motorola
Agreement for the benefit of the party or parties who shall be entitled to the discount.
6.4 Each of Ajax, Clarington, Pickering and Whitby agree to provide payment to Oshawa of
the following amounts, inclusive of all taxes and exclusive of all discounts until such
discounts are finalized and agreed to in accordance with this AGREEMENT, on the
following schedule:
30% of the total sum owing by that party on execution of this Agreement;
60% of the total sum owing by that party on the shipping of the Equipment from
Motorola's facilities;
5% of the total sum owing by that party on SYSTEM ACCEPTANCE; and
5% of the total sum owing by that party on FINAL PROJECT COMPLETION.
6.5 Oshawa shall forward such sums received by the parties to Motorola in accordance with
Exhibit B to the Motorola Agreement but at no time shall Oshawa be liable to advance
6
any sums to Motorola that have not been properly paid to it by any of Ajax, Clarington,
Pickering or Whitby under this AGREEMENT.
6.6 The parties agree that Oshawa shall not be liable to pay interest to any party on any sum
advanced under this AGREEMENT unless it holds the sum advanced for a period in
excess of 60 days before providing it to Motorola, at which point Oshawa shall pay
interest in an amount equal to the amount of interest Oshawa is paid by its financial
institutions on short-term deposits, if any.
6.7 IfOshawa continues to hold any sums advanced under this Agreement in excess of 120
days, either because the sums are not due and payable to Motorola, or there is a dispute
with Motorola under the Motorola Agreement and Oshawa (pursuant to a written
resolution approved by the COMMITTEE) is withholding payment as a result of this
dispute, such sums shall be returned to the party who advanced same to Oshawa. The
return of funds shall, nevertheless, not relieve any party from its obligations under Article
6.3 or 6.4 and the parties shall resubmit such funds to Oshawa, on demand, following a
written resolution approved by the COMMITTEE authorizing payment following a
dispute with Motorola.
6.8 In the event that the SYSTEM, or any component of it, is destroyed or damaged prior to
SYSTEM ACCEPTANCE, the parties will use any funds under a policy of insurance that
is contracted for under this AGREEMENT to completely replace the SYSTEM or the
damaged component.
Section 7
Dispute Resolution
7.1 Where the COMMITTEE is unable to unanimously agree on an issue, the parties'
respective City Managers/Chief Administrative Officers, 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 each of the others with the objective of resolving any
dispute.
7.2 Following meetings of the parties' City Managers/Chief Administrative Officers as
provided for above, in the event that a mutually satisfactory resolution is not achieved
within fifteen (15) days following the receipt of the above notice by the other parties, the
dispute shall be referred to a single arbitrator, if the parties agree upon his or her 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 (or successor legislation) 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 making 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 all parties, without
regard to their involvement in the arbitration.
7
7.3 Notwithstanding that a matter has been referred to dispute resolution under the provisions
of this Section, the parties shall throughout the period of dispute resolution endeavour to
perform their respective obligations under the terms of this AGREEMENT to the best of
their abilities and in good faith.
Section 8
Term
8.1 The Term of this AGREEMENT shall continue from the date of execution until
SYSTEM ACCEPTANCE, at which point it shall terminate.
Section 9
Indemnity
9.1 With regard to any third party claim in excess of the policy limits of any insurance placed
under this AGREEMENT, each party hereby agrees to indemnify and hold harmless each
and every other party against all actions, suits, claims, demands, losses, costs, charges
and expenses including legal costs (hereinafter the "claims"), arising out of or in
consequence of that indemnifying party's individual obligations as provided for in this
AGREEMENT, except that where such claims are caused by the gross negligence of one
or more parties, those parties who are grossly negligent shall not be indemnified by the
other parties with respect to the claims, but those parties who are grossly negligent shall
continue to indemnify all innocent parties with respect to the claims. The terms and
provisions of this Article shall survive any termination of this AGREEMENT.
Section 10
Notice
10.1 Any notice under this AGREEMENT shall be in writing and shall be served personally
by regular mail or facsimile transmission upon each of the parties at the following
addresses:
The Corporation of the Town of Ajax
65 Harwood Ave. South
Ajax, Ontario LIS 2H9
Fax: 905-683-8119
Attention: Fire Chief
The Corporation of the Municipality of Clarington
40 Temperance Street
Bowmanville, Ontario LIC 3A6
Fax: 905-623-0584
Attention: Fire Chief
The Corporation of the City of Oshawa
50 Centre Street South
Oshawa, Ontario L 1 H 3Z7
Fax: 905-436-5623
Attention: Commissioner of Corporate Services
The Corporation of the City of Pickering
8
One The Esplanade
Pickering, Ontario LIV 6K7
Fax: 905-839-6327
Attention: Fire Chief
The Corporation of the Town of Whitby
575 Rossland Road East
Whitby, Ontario L 1 N 2M8
Fax: 905-686-7005
Attention: Fire Chief
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 11
General
11.1 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.
11.2 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.
11.3 Subject to the Municipal Freedom ofInformation and Protection of Privacy Act, R.S.O.
1990 c. M.56, (or successor legislation) 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.
1 1.4 This AGREEMENT contains the entire agreement between the parties with respect to the
installation and implementation of the SYSTEM up until the date of SYSTEM
ACCEPTANCE 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 save and except those as provided in the Motorola Agreement.
9
11.5 The parties hereby agree that, although Beneficial Use, as defined in the Motorola
Agreement, of the SYSTEM is permitted, no party shall actually use the SYSTEM until
SYSTEM ACCEPTANCE except that Oshawa shall be entitled to continue to use its
current system under the guidance and direction of Motorola Canada Limited.
11.6 The rights and obligations as contained within this AGREEMENT shall accrue and apply
severally to and against each of Ajax, Clarington, Oshawa, Pickering and Whitby and the
failure on the part of one party to comply with the terms of this AGREEMENT shall not
be taken as a failure on the part of any other party or parties. The rights of each of party
may be severally enforced.
11.7 The parties hereto shall with reasonable diligence do all such things and provide all such
reasonable assurances as may be required to fulfil their obligations 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.
11.8 No supplement, amendment or waiver of or under this AGREEMENT (excepting notice
of change of address as contemplated in Section 10) 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 ofthis AGREEMENT shall be deemed or shall constitute a waiver of any other
provision or a continuing waiver unless otherwise expressly provided.
11.9 Notwithstanding anything in this AGREEMENT, no party shall be in default with respect
to the performance of any of the terms of this AGREEMENT if any non-performance is
due to any force majeure, strike, lock-out, labour dispute, civil commotion, war or similar
event, invasion, the exercise of military power, act of God, government regulations or
controls, inability to obtain any material or service, or any cause beyond the reasonable
control of the party, unless such lack of control results from a deficiency in financial
resources.
11.10 This Agreement shall enure to the benefit of and be binding upon the parties and their
respective successors and 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, in counterparts, by
the execution of Schedules "A", "B", "C", "0" and "E" hereto by Ajax, Clarington, Oshawa,
Pickering and Whitby, respectively.
Schedule "A"
Sie:natorv Pae:e for the Town of Aiax
This is Schedule "A" to the Project Implementation Agreement between the Corporation of the
Town of Ajax, the Corporation the Municipality ofClarington, the Corporation of the City of
Oshawa, the Corporation 0 e Ci of Pickering and the Corporation of the Town of Whitby
dated March 27, 2002. I
i
I
7
,(
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~
13
Schedule "B"
Si2natorv Pa2e for the Municipalitv of Clarin2ton
This is Schedule "B" to the Project Implementation Agreement between the Corporation of the
Town of Ajax, the Corporation of the Municipality of CIa ring ton, the Corporation of the City of
Oshawa, the Corporation of the City of Pickering and the Corporation of the Town of Whitby
dated March 27,2002.
14
Schedule "C"
Sienatorv Pa2e for the City of Oshawa
This is Schedule "C" to the Project Implementation Agreement between the Corporation of the
Town of Ajax, the Corporation of the Municipality of Clarington, the Corporation of the City of
Oshawa, the Corporation of the City of Pickering and the Corporation of the Town of Whitby
dated March 27, 2002.
THE CORPORATION OF THE
CITY 0 OSHA W A
/~
~~~
Clerk
'-
"
10
Schedule "D"
Sieoatorv Paee for the City of Pickerine
This is Schedule "D" to the Project Implementation Agreement between the Corporation of the
Town of Ajax, the Corporation of the Municipality of Clarington, the Corporation of the City of
Oshawa, the Corporation of the City of Pickering and the Corporation of the Town of Whitby
dated March 27, 2002.
THE CORPORATION OF THE
CITY OF PICKERING
.~~
M3#
~~/ ~
CI~l-k
Schedule "E"
Sienatorv Paee for the Town of Whitby
This is Schedule "E" to the Project Implementation Agreement between the Corporation of the
Town of Ajax, the Corporation of the Municipality of Clarington, the Corporation of the City of
Oshawa, the Corporation of the City of Pickering and the Corporation of the Town of Whitby
dated March 27, 2002.
THE CORPORATION OF THE
TOWN OF WIllTBY
/~?!~-
Mayor. - -. _
Clerk
15
Appendix "I"
The following table assigns the amount payable by each party, save for Oshawa, under the
Motorola Agreement and pursuant to Article 6.3 of the AGREEMENT:
~
Amount Payable
Ajax
Clarington
Pickering
Whitby
$1,190.653.00
$2,196,635.00
$1,371,825.00
$1,134,746.00
Total:
$5.893.859.00
These amounts are exclusive of taxes and exclusive of any discounts that may be provided under
the Motorola Agreement. It is acknowledged that change orders as agreed to by the
COMMITTEE may modify the total payable by each party under this AGREEMENT.
These amounts are premised on Exhibit C-2 to the Motorola Agreement, but account for a
substitution of MTS Portable Radios for the XTS3000 Portable Radios quoted in the contract.
Each party agrees that in the event they do not choose to substitute MTS Portable Radios for the
XTS3000 Portable Radios, their costs will increase.
Each party agrees to pay all taxes exigible on the above amounts in accordance with each party's
percentage of the total payable under the Motorola Agreement.
Oshawa's share of MOSCAD Equipment and Services under the Motorola Agreement is
$72,044.00, portions of which will be paid to each ofClarington, and Whitby as follows, plus all
taxes exigible on the following amounts under the Motorola Agreement:
~
Amount Pavable
Clarington
Whitby
$36,023.00
$36,021.00
Total:
$72.044.00
..~
18
Schedule "C"
Sil!oatorv Pal!e for the City of Oshawa
This is Schedule "c" to the Ownership, Operation and Maintenance Agreement between the
Corporation of the Town of Ajax, the Corporation of the Municipality ofClarington, the
Corporation of the City of Os haw a, the Corporation of the City of Pickering and the Corporation
of the Town of Whitby dated March 27, 2002.
THE CORPORATION OF THE
CITY 1<' OSHA WA .
S\~>
Clerk
Schedule "D"
Si2oatorv Pa2e for the City of Pickerio2
This is Schedule "D" to the Ownership, Operation and Maintenance Agreement between the
Corporation of the Town of Ajax, the Corporation ofthe Municipality ofClarington, the
Corporation of the City of Os haw a, the Corporation of the City of Pickering and the Corporation
of the Town of Whitby dated March 27,2002.
THE CORPORATION OF THE
CITY OF PICKERING
.'~
L8~~ ~
.' Major _ -~
~:-A .
a..
Schedule "E"
Si2natorv Pa2e for the Town of Whitby
This is Schedule "E" to the Ownership, Operation and Maintenance Agreement between the
Corporation of the Town of Ajax, the Corporation of the Municipality of Clarington, the
Corporation of the City of Oshawa, the Corporation of the City of Pickering and the Corporation
of the Town of Whitby dated March 27,2002.
THE CORPORATION OF THE
TOWN OF WIDTBY
~~~.~~<
~ayor
~-
1/-
Clerk
19
Appendix "I"
Rules of Arbitration
Jurisdiction and Scope
1. The Arbitral Tribunal (as defined below) appointed under these Rules will apply the
provisions of the Arbitration Act, 1991 (Ontario) to any Arbitration conducted under this
AGREEMENT except to the extent they are modified by the express provisions of these
Rules.
2. Each party acknowledges:
(a) it will not apply to the Courts of Ontario or any other jurisdiction to attemptto
enjoin, delay, impede or otherwise interfere with or limit the scope of the
Arbitration or the powers of the Arbitral Tribunal; and
(b) the award of the Arbitral Tribunal will be final and conclusive and there will be
no appeal; therefrom whatsoever to any court, tribunal or other authority.
3. The Arbitral Tribunal has the jurisdiction to deal with all matters relating to a dispute
including, the jurisdiction:
(a) to determine any question of law, including equity;
(b) to determine any question of fact, including questions of good faith, dishonesty
or fraud;
(c) to determine any question as to the Arbitral Tribunal's jurisdiction;
(d) to order any party to furnish further details, whether factual or legal, of that
party's case;
(e) to proceed in the Arbitration notwithstanding the failure or refusal of any party to
comply with these Rules or with the Arbitral Tribunal's orders or directions, or to
attend any meeting or hearing, but only after giving that party written notice the
Arbitral Tribunal intends to do so;
(t) to receive and take into account such written or oral evidence tendered by the
parties as the Arbitral Tribunal determines is relevant, whether or not admissible
in law;
(g) to make one or more interim awards including, without limitation, orders to
secure any amount relating to the dispute;
20
(h) to order the parties to produce to the Arbitral Tribunal and to each other for
inspection, and to supply copies of any documents or classes of documents in
their possession, power or control that the Arbitral Tribunal determines to be
relevant; and
(i) to express awards in any currency;
But excluding matters determined by, and within the authority of, the COMMITTEE in
accordance with Section 5 of the AGREEMENT.
Place of Arbitration
4. Unless otherwise agreed, the Arbitration will be conducted in the Regional Municipality
of Durham in the Province of Ontario at the location determined from time to time by the
Arbitral Tribunal, but the Arbitral Tribunal may meet in any other place the Arbitral
Tribunal considers necessary for consultation, to hear witnesses, experts or other parties,
or for the inspection of documents, goods or other property.
Appointment of Arbitral Tribunal
5. As used in these Rules, the term "Arbitral Tribunal" means the Sole Arbitrator appointed
under these Rules or the Arbitral Tribunal appointed under these Rules, as the case may
be.
6. The Arbitration will be commenced by delivery of a Notice Requesting Arbitration (the
"Complaint") by the Claimant(s) to the Respondent(s). The Complaint must describe the
nature of the dispute.
7. The Claimant(s) and the Respondent(s) may agree in writing upon the appointment of a
single Arbitrator who will determine the dispute acting alone (the "Sole Arbitrator") or
upon the appointment ofa three (3) member Arbitral Tribunal. If within five (5) days of
the giving of the Complaint, the Claimant(s) and the Respondent(s) do not reach
agreement on the appointment of the Sole Arbitrator, then each of the Claimant(s), as one
group, and the Respondent(s), as a second group, may appoint one Arbitrator and provide
the other parties with written notice of such appointment. If one party does not provide
such written notice, then the arbitrator who has been appointed by the other party will be
the Sole Arbitrator and will constitute the Arbitral Tribunal. Where either the
Claimants(s) or the Respondents(s), each acting as a group, are unable to agree on the
appointment of their representative, three neutral Arbitrators may be appointed by a
Judge of the Superior Court of Justice (Ontario) on the application of any of the
Claimant(s) or the Respondent(s), on notice to each of the parties.
8. If the Claimant(s) and the Respondent(s), acting as groups, each appoint one Arbitrator
under Section 7 of these Rules, then, within five (5) days of the appointment of such
Arbitrators, such Arbitrators shall choose a third Arbitrator as chair (the "Chair") and
give notice to the Claimant(s) and the Respondent(s) of such appointment, failing which
the Chair may be appointed by a Judge of the Superior Court of Justice (Ontario) on the
application of any of the Claimant(s) or the Respondent(s), on notice to each of the
parties. Upon giving of notice by the Arbitrators of the appointment of the Chair, or the
21
appointment by a Judge of the Chair, as the case may be. the Chair and the other
Arbitrators previously appointed will constitute the Arbitral Tribunal.
9. Any decision of the Arbitral Tribunal (including, without limitation, its final award made
with respect to a dispute or with respect to any aspect of, or any matter related to, the
Arbitration (including; without limitation, the procedures of the Arbitration) will be made
by either the Sole Arbitrator or by a majority of the Arbitral Tribunal, as the case may be.
All decisions of the Arbitral Tribunal with respect to a dispute, except procedural
decisions, will be rendered in writing, and contain a recital of the facts upon which the
decision is made and the reasons.
Pre-Arbitration Meetine
10. The parties shall meet with the Arbitral Tribunal within seven (7) days of the constitution
of the Arbitral Tribunal for a pre-arbitration meeting to:
(a) identify the issues in dispute;
(b) discuss the procedure to be followed in the Arbitration;
(c) establish time periods for taking certain steps, including the dates, time and
location of the Arbitration; and
(d) deal with any other matter that will assist the parties to settle their differences and
assist the Arbitration to proceed in an efficient and expeditious manner.
11. The pre-arbitration meeting may take place by conference telephone call.
12. The Arbitral Tribunal shall record any agreements or consensus' reached at the pre-
arbitration meeting and shall, within three (3) days of that meeting, send a copy of that
document to each of the parties or their representative.
Conduct of the Arbitration
13. Subject to the Rules in this Schedule, the Arbitral Tribunal may conduct the Arbitration
in the manner the Arbitral Tribunal considers appropriate, but each party shall be treated
fairly and shall be given full opportunity to present a case.
14. Under this Schedule, the power of the Arbitral Tribunal includes, but is not limited to:
(a) ordering the Arbitration to be conducted by documents only, or with limited oral
hearings;
(b) controlling or refusing discovery examinations;
(c) determining in what order issues will be dealt with;
(d) limiting or extending the extent of document disclosure;
(e) requiring further particulars of the claim and the issues advanced;
:..' ,
(g)
(h)
(i)
(j)
(k)
(I)
(m)
(n)
22
(f)
requiring earlier disclosure of intended witnesses and documents;
limiting the number of experts or refusing to allow expert evidence;
requiring the use of a single independent expert to deal with a particular issue or
any number of issues;
requiring experts to file written reports in place of giving oral testimony;
requiring expert reports earlier in the process than required under this Schedule;
determining when and in what order experts will be heard;
setting dates, times and locations for the Arbitration'
ordering pre-arbitration meetings as required;
fixing and awarding costs, including solicitor/client costs and the costs of the
Arbitration.
Exchan2e of Documents
15. Within fifteen (15) days of the pre-arbitration meeting, or if the parties agree that no pre-
arbitration meetings will be held, within fifteen (15) days after the Arbitral Tribunal has
been constituted, the Claimant(s) shall send a written statement to the Respondent(s) and
the Arbitral Tribunal outlining the facts supporting the claim of the Claimant(s), the
points at issue, and the relief or remedy sought.
16. Within fifteen (15) days after the Respondent(s) receive(s) the Claimant(s)' statement, the
Respondent(s) shall send a written statement to the Claimant(s) and the Arbitral Tribunal
outlining the Respondent(s)' defence, the facts supporting the defence, the Defendant's
positions on the points at issue and the relief or remedy sought, and a written statement of
the Respondent(s)' counterclaim, if any.
17. The Respondent(s), by counterclaims, shall send a \\Titten statement to the Claimant(s)
and the Arbitral Tribunal outlining the Respondent(sr defence to the counterclaim within
fifteen (15) days after the Respondent(s) receive(s) the counterclaim.
18. Each party shall submit with the party's statement a list ofthe documents upon which the
party intends to rely and the list of documents shall describe each document by specifying
its document type, date, author, recipient and subject matter.
Amendment of or Supplemental Claim
19. The Arbitral Tribunal may, on application of a party or on the Arbitral Tribunal's own
motion, order a party to produce any documents the Arbitral Tribunal considers relevant
to the Arbitration within a time the Arbitral Tribunal specifies and, where such an order is
made, the other party may inspect those documents and make copies of them.
-,' J
23
Production of Documents
20. The Arbitral Tribunal may, on application of a party or on the Arbitral Tribunal's own
motion, order a party to produce any documents the Arbitral Tribunal considers relevant
to the Arbitration within a time the Arbitral Tribunal specifies and, where such an order is
made, the other party may inspect those documents and make a copies of them.
21. Each party shall make available to the other for inspection and copying any documents
upon which the party intends to rely.
A2reed Statement of Facts
22. The parties shall, within a period oftime specified by the Arbitral Tribunal identify those
facts, if any, which are not a dispute and submit to the Arbitral Tribunal an agreed
statement of facts.
Arbitration Hearin2s
23. The Arbitral Tribunal shall set the dates for any oral hearings or meetings and shall give
at least seven (7) days written notice of such hearings or meetings to the parties.
24. All oral hearings and meetings shall be held in private and all written documentation shall
be kept confidential by the Arbitral Tribunal and the parties and not disclosed to any
other person, except by the consent of all parties.
Evidence
25. Each party shall prove the facts relied upon to support the party's claim or defence.
26. If a party is presenting evidence through a witness, the party shall, no later than seven (7)
days before the commencement of the oral hearing, advise the Arbitral Tribunal and the
other party of the name and address of the witness and provide a brief summary of the
evidence to be given by the witness.
27. The written statement of an expert shall be given to the other party and the Arbitral
Tribunal at least fourteen (14) days before the commencement of the oral hearing.
28. The Arbitral Tribunal shall be the sole judge of the relevance and materiality of the
evidence offered and the Arbitral Tribunal is not required to apply the legal rules of
evidence.
29. All oral evidence shall be taken in the presence of the Arbitral Tribunal and all the
parties, except where any of the parties is absent, in default or has waived the right to be
present.
30. The parties shall prepare books containing all of the documents to be introduced at the
oral hearing and shall submit those books to the other party and to the Arbitral Tribunal
no later than fourteen (14) days before the commencement of the oral hearing.
. .
24
31.
The parties are deemed to have consented to the authenticity of all documents contained
in the document books, unless the party gives notice of objection within seven (7) days of
the oral hearing to the other party and the Arbitral Tribunal.
32.
The Arbitral Tribunal may allow a party to introduce into evidence at the oral hearing a
document which was not disclosed or submitted at least fourteen (14) days before the
commencement of the hearing, but the Arbitral Tribunal may take that failure into
account at the time the Arbitral Tribunal fixes any costs.
Examination of Parties
33. At an oral hearing the Arbitral Tribunal may order a party, or a person claiming through a
party, to submit to being examined by the Arbitral Tribunal under oath and to submit all
the documents that the Arbitral Tribunal requires.
Witnesses
34. The Arbitral Tribunal may determine the manner in which witnesses are to be examined
and may require a witness, other than a party or the party's representative, to leave the
oral hearing during the testimony of another witness.
35. Where the Arbitral Tribunal allows the evidence of a witness to be presented by a written
statement, the other party may require that the witness be present at an oral hearing for
cross-examination.
36. The Arbitral Tribunal may call a witness on the motion of the Arbitral Tribunal, but
where a witness is called by the Arbitral Tribunal, the parties have the right to cross-
examine that witness and call evidence in rebuttal.
Experts
37. The Arbitral Tribunal may appoint one or more experts to report on specific issues to be
determined by the Arbitral Tribunal and may require a party to give the expert any
relevant information or the produce, or to provide access to, any relevant documents,
goods or other property for inspection by the expert.
38. The Arbitral Tribunal shall communicate the expert's terms of reference to the parties.
39. Any dispute between a party and an expert as to the relevance of the required information
or the production of the information shall be referred to the Arbitral Tribunal for
decision.
40. Upon receipt of the expert's report, the Arbitral Tribunal shall infonn the parties of the
contents of the report and the parties shall be given an opportunity to express, in writing,
their opinion on the report.
41. The expert shall, at the request of a party, make available to that party for inspection all
documents, goods or other property in the expert's possession which the expert was
provided with in order to prepare the expert's report and the expert shall provide that
party with a list of all documents, goods or other property not in the expert's possession