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HomeMy WebLinkAbout2002-050 CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY -LAW 2002-050 being a by-law to authorize the execution of an Implementation Agreement with the City of Oshawa and Clarington, Whitby, Ajax and Pickering as parties to the Agreement, governing the technical requirements to have the system installed and being in effect until the longer term Operating Agreement will become effective THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1. THAT the Mayor and Municipal Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington and seal with the Corporate Seal, an Implementation Agreement with the City of Oshawa and Clarington, Whitby, Ajax and Pickering as parties to the Agreement, governing the technical requirements to have the system installed and being in effect until the longer term Operating Agreement will become effective; and 2. THAT the agreement attached hereto as Schedule "A" form part of this By-law. By-law read a first and second time this 2nd day of April, 2002 By-law read a third time and finally passed this 2nd day of April, 2002 -...::: - ...::: - - ~ ,",----,:::'-- "'.---~--,...... - - ~ ~ . ~ THIS OWNERSHIP, OPERATION AND MAINTENANCE AGREEMENT made this 27'" day of March,200y BETWEEN: THE CORPORATION OF THE TOWN OF AJAX ("Ajar") - and - THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON ("Clarington") - and- THE CORPORATION OF THE CITY OF OSHAWA ("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 of the"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 of the 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: 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) 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) COMMTTEE 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 COMMITTEE,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) PRMARY 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 vear. (1+) SYSTEM means the Equipment and Sof fare;as defined in the Motorola inclusive of the Equipment to be installed at the PRIMARY AND Agreement, REMOTE SITE, the Pickering/Ajax Remote Centre and the Remote OSi Sites as de detailed Exhibit C-I to the Motorola Agreement and includes the five(5)channel 800 led in franked emergency radio system currently operated by Oshawa's emergency sere fire department together providing a nine (9)channel 800 system to serve the combined geographic areas over which each municipal s and MHz trunl►ed emergency radio Jurisdiction,as may be modified,replaced or upgraded from time to time, but d include: party has does not i) SUBSCRIBER EQUIPMENT of any parry; ii) the Pickering/Ajax Remote Dispatch Centre as described in Exhibit C- to the Motorola Agreement; or 1 iii) the Oshawa Fire Hall#1 Communications Centre as described in E C-I to the Motorola Agreement. xlt�bit {I) SYSTEM ACCEPTANCE means that the Acceptance Tests, as defined in Agreement, have been successfully completed in accordance with the Motorola the 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 a Provincial,municipal(including he P Yment, whether imposed by federal, whether now or in the future in existenceswischool respect o the SYSTEM or the la,and buildings or structures to which the SYSTEM, or any coin the land, Without limitation,this includes any other taxes,rates,duties, assessments,fees which may be imposed on any or all of the parties on account of it, may be attached. • whether or not the ccount or in lieu of TAXES levies Y are secured against property,or of a nature similar to those whether recurring annually,or at other intervals,or on a s only. takes,and pedal or single instance basis Section 2 Ownership 2.1 On the date on which title to the"Equipment"and "Software"are shipped the "Customer" as provided in the Motorola Agreement; the SYS E d will be join to owned by ail of the parties in equal shares and operated and maintained r•the fly every party to this AGREEMENT benefit of 2.2 On terms as approved by the CO the LICENCE however, where theappl cable agencv of theoG fly apply for and hold having jurisdiction over the LICENCE requires only one legal men�a f Canada LICENCE,Oshawa shall apply for and hold the LICENCE in trust for the benefit and every other a entity hold the party to the AGREEMENT it of itself ?.3 Any licences or leases of land or a facility obtained for the placement of an component of the SYSTEM on the property of a person who is not a shall be held jointly and equally by all of the parties but, where the o this EMEN unanimously, such rights and agreements may be held t, Party to this AGREEMENT Of itself and every other part,to the AGREEMENT. Oshawa agrees _ y Oshawa in trust for the benefit and 2A The rights in the trunk lines con necrina the various components of the equipment that is not part of the SYSTEM shall be held jointly and equally SYSTEM all oo f thany Y _ e d Parties but, where the CO,'iMITTEE agrees unanimouslt, such may be held by Oshawa in trust and for the benefit of even rights and agreements 2'5 Any SUBSCRIBER Pay to this AGREEMENT. RISER EQUIP1�ETVT, � provided under the Motorola the sole proper, of the party identified as Agreement, shall be Exhibit C-2 of the Motorola Agreement Paying for same and/or receiving same under Section 3 Operation 3.1 Oshawa, having custody of the PRIMARY be the primary operator of the SYEM u 'eAc D O-LDCATED pEMOTE such will be responsible for c action of the COMMITTEE, "Fill SYSTEM to the standards as eying out day to day operation and magi qen�e' fl an the d as location of the PRIMARY SITE and CO-b the COMX4IITTEE from time to time, The except with the unanimous consent of all LOCATED REMO TE SITE cannot be changed 3.2 Parties to this AGREEMENT. Oshawa through the Administrative this as a i between the parties dated March,'.7 pPo rated under an continue to work with +2002 titled Project Implementation A agreement followin the Motorola to bring about FINAL PROJECT ACCjrpTANCE ACCEPTANCE of the project Implementation A e ANCE under the uidthee and direction m the CO Agreement Upon eon SYSTEM 3.3 Notwithstanding NUTIEE• tandin the generality of Article 3.1 ( approved by the COMMIE w +Oshawa will provide the following services necessary under this AGREEMEN here advance approval of the CO COMMITTEE from time to time+ n eSpect oaf a ith s TIEE is SYSTEM, but at all times in accordance with standards determined by the Operation and mai th the APPROVED SYSTEM B enance of the a) Making application for and holding DGET: SYSTEM from the applicable - ' the LICENCE necessary to operate the autho b) If commercially ava able, cont contracting freer with an replacement cost of the SYSTEM y renewals thereof, Policies of insurance provided that all Placement of insurance for the M � the result of damage through one or more Parties to the extent of their respective interests in the SYSTEM.C) If commercially available, contracting for the placement arced as insured Policy of insurance naming each rat of a resulting from the o P�h' as ins led general liability Aeration and maintenance of red with respect to liability d) Arranging for the supplying he SYSTEM. up uninterruptable PPlyin of electrical power for the SYSTEM therefor; Power anPP1Y and executing including Back- e) A�nging for regular any of the SYSTEM g any necessary agreements maintenance and repair from time to time M and contracting standards a in accordance with g for reasonable approved by the COMMT7ZEE; the applicable f) Conducting audits of the condition of the SYSTEM at years and reporting on the condition to the COMMITTEE, once eve g) Negotiating agreements for space for components TTTEE' �' five (5) third party owned lands or structures r terms ents of the SYSTEM advance; and approved by the COMMIT-ME located on h) Providing information Technology �'IEE covered by agreements with thiord arties ludid maintenance of softw g Motorola. are not 3•4 All costs of the operation and of the parties and maintenance of the SYSTEM ►►•i!1 will include, but are not limited to: be shared equally by all (a) Application and fees for the LICENCE for the SYSTEM (b) , but not for any licence for the operation of Si1BSCRiBER E including fees Cell site tower licence or rental fees; QI IIPMENT; (c) Telephone line charges; (d) Repairs to, or replacement of, the SYSTEM or any portion o f the S (e) Insurance; SYSTEM; (f) Maintenance of and upgrading to both software(e) Any TAXES levied against Oshawa or any and hardware- existence,maintenance or operation of the SYSTEM; y other p� with respect to the (h) Costs of Oshawa employees, contractors and agents in and maintenance obligations under this AGREEMENTrformiag the operation COMMITTEE in advance;and as approved by the (�) Any deductible on any policy of insurance referred to in a claim is made on behalf of all of the Articles 3.3 or 4.1 where parties under that insurance. Oshawa will provide the above services, to the extent the services employees, contractors and agents of Oshawa, are p Iess its share of the cost. on the basis of COST RECOVERY only, Provided by the 3.6 Oshawa shall keep proper and detailed accounts and records th accepted accounting practices, where accordance with generally computation of the amounts payable pursuant to this AGREES-r. app icable, of all factors entering Parties may, during regular business hours at the offices of o into the reasonable notice and at that �Y or all other receipts,vouchers and other documents es sole ex Oshawa, upon giving pence audit and inspect accounts, records this AGREEMENT and shall have the right fat make se copies Performed ' expense. Oshawa shall afford all reasonable facilities, physical al and extracts Other is , its wn audits and inspections. . Otherwise, for such Section 4 Additional Responsibilities of the Parties 4.1 Subject to additional agreements as may be executed by the solely responsible for all of the expenses relating to: parties, each Ply will be (a) The licence fees to licence that (b) All line and usage fees from the Pi's SUBSCRIBER EQUIP�T. to the specific fire service dispatch PRIMARY a d servicing'�TED REMOTE SITE jurisdiction ; that party's area of (c) Replacement, maintenance and repair of its own SUBSCRIBER including battery replacement;and EQUIPMENT (d) Its own phone use and line costs and such expenses shall not form a SYSTEM or the part of the expenses of maintaining and o APPROVED SYSTEM BUDGET. SYSTEM BUDGET or prating the any SUPPLEMENTARY Each parry agrees to maintain those lands, buildings or structures that may be either owned by or leased or licensed to that part,that accommodate a portion of the SYSTEM to the standards set out in the Motorola Agreement. M 4•3 Each party (the "Licencin Party $ ) hereby provides a licence to every other party to permit the installation, maintenance and replaceent 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 and not to introduce incompatible SUBSCRIBER E unable standard equipment or software which may compromise the functionality'M too the STEM or other SYSTEM, the intention being that the SYSTEM wiIJ intent of the Motorola Agreement. functions in accordance with the Section 5 Governance 5.1 No evidence of the authority of any person who u party at a meeting of the CONMTTEE shall be required or called alledrfo nt the interests of a 5.2 . In the absence of a COMMTTTEB 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 Chairperson who shall each serve in those capacities members tw Chairperson consecutive mrpersan and a Vice- unless either or both resign earlier, in which case a replacement(s)will be appointed months the COMMITTEE from its members at the earliest o ) Apointed by opportunity. 5.4 Meetings of the COMMTTEE may be called either at the request of the Chairperson the request of at least two members of the CO or three(3)days advance written notice to all of the parties.�tiE' m writing, on no less than 5.5 Meetings of the COMMITTEE shall be presided over by the Cha' conduct the meeting in accordance with Robert's Rules of Order unless otherrrw se agreed by every member of the COMMITTEE. 5.5 All meetings of the COMMITTEE shall be held within the geographic the SYSTEM. area serviced by 5.7 The COMMITTEE shall not be entitled to conduct business where any Jess than representative of every party is present(a "Quorum„ one COMMITTEE is proper, 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 not achieved has been adjourned, the COMMIT`T'EE may lawfully conduct�usines on the adjourned meeting date, provided a majority of the members are then present. 5.8 Provided that any monies ex not exceed the Fended pursuant to anv of the actions fisted in this Article do amount set out therefor in the APPROVED SYSTEy BUDGET SUPPLEMENTARY APPRO�ED SYS COMMITTEE, on behalf of each arty TEM BUDGET for that same calenaar ear, he P ,shall have the full authority to do the foil-owing: (a) Authorize the lease or licence of any sites to acco SYSTEM; mmodate (b) Authorize the entering into of agreements for the o any portion of the of the SYSTEM; Aeration and/or maintenance (c) Authorize the entering into of an contracts followin Y S°Fare or equipment maintenance or u g Consultation with Oshawa's.Information ranch, (d) Authorize the carrying out of any SYSTEM condition audits; (e) Authorize agreements for replacement of the SYSTEM or an � ranch; in accordance with the City Of requirements in force from time o0timevun waived BY-Jaws Y component thereof shall proceed in accord Purchasing and operational COMMI ance with the Purchasing Procedures which case purchases TrEE on a unanimous vote of the members thereof;s determined by the (� Determine the standards of maintenance and operation of time to time, the SYSTEM from Contracts and agreements authorized under this Article 5.8 b entered into jointly and equally by all of the Y the CO unanimously, such rights parties but, whore the COIIE shall be benefit of eve and agreements may be entered into by Oshawa��E fees r3'Fly to this AGREEMENT, trust for the As soon as possible after the execution of this AG Oshawa, will amend its k EMENT purchasing by-Iaw s to , each parry, other than agreements made under Article S.S. ( ) 'nee it inapplicable to Purchases and 5•� Notwithstanding that an amount may BUDGET or a SUPPLEMENT Y not be provided in the APPROVED COMMITTEE b '�1' APPROVED SYSTEM SYSTEM EMERGENCY Y pAIRSousc decision of its member,ma BUDGET, the REPAIRS to the SYSTEM, or an Y authorize the carrying out of accordance with Oshawa's Y component of the SYSTEbI, in waived, and may utilize any amount By-laws and operational requirements, unless EMERGENCY REPAIRS Y amount in the capital reserve account to carryout Treasurer of each and immediately provide appropriate documentation o the PAY and the use of the capital reserve account. 5.10 Recommendations and decisions of the COMMITTEE shall be made b resolution to be passed by a ma•ori unless otherwise p Majority of those in attendance at a properly called Meeting th- Provide copies of all°resolution$of the The COMMITTEE shall keep and TTEE to each party. 5.11 The COMMITTEE ' or �!'� member thereof, is hereby representatives of other municipalities in Durham meet with Region that are interested,nter seed, with the objective of expanding the service area of the SYSTEM. Following COMMITTEE shall report to the Municipal Councils of the such discussions,the proposed amendments to this AGREEMENT resulting from the Proposed future Parties concernin¢ any Parties. P admission of 5.12 The CONtMITTEE shall have no authori;v to modify or revise AGREEMENT. the terms of [his Section 6 Budget 6.1 The COMMITTEE, in consultation with the Treasurer of each parry for Oshawa, shall prepare draft recommended annual operating and the Fire Chief setting out estimated operating and capital costs for the SYSTEM,g and capital budgets submitted to the Municipal Councils of the parries for consideration estimates shall be each year with respect to the bud ideration by October p gets for the immediatel_•succeeding calendar year. 1 °f 6.2 Upon reviewing the estimates, the parties'for the operation and maintenance of the SYSTEM for the Municipal Councils shall establish an overall described and, in doing so, the Municipal Councils are not bound to adopt submitted b Purposes herein y the COMMITTEE. p the estimates b•3 Upon approval of the Council, each APPROVED SYSTEM BUDGET b Party hereby agrees to pay to Oshawa, Y every parties' Municipal share equal to, 115 of the said budget in four equal installments on the fifteen of each of the months of April, June, August, and Oshawa agrees to allocate its which the APPROVED SYSTEM BUDGET g t' and November, in the calendar lyeardto Parties. In the event of E relates, unless otherwise agreed by the MERGENCY utilized, Oshawa shall provide each of the others where the capital reserve account is details the amount so utilized, and each parties with a written invoice which agrees to allocate its share equal to, 115 of the amount used de totoo the ha end of Oshawa budget year. the next 6.4 In addition to the actual estimated each ply will contribute equal annual operating and capital � s of the SYSTEM reserve account, to be held by Oshawa and tints ested for the benefit of accordance with the requirements of the Munici e _ agreed upon to fund a capital invest the capital reserve fund, but capital preservation shall all a the parties in revenue,and Oshawa shall not be subject to p Ac Oshawa shall have the duty to t be the primary objective,not the Trustee Ac any obligations or restrictions as contained in Act; R.S.O. 1994 C. T.23 (or any successor legislation). 5.9,this reserve account will only be used in accordance with the APPRO BUDGET and is intended for major capital replacement Subject to Section of its components. Oshawa shall provide each of the artier with SYSTEM activities respecting the capital reserve account b June or repair of the SYSTEM, n any P ith a statement d annual y ne !g of the following calendar year. 6.5 In the event of a failure of an SYSTEM BUDGET b March Pty°s Municipal Council to agree on an APPROVED the budget will be established ui3accordance with for that same calendar Dispute Resolution, Upon the determination of the APPROVED year, the amount of Of this AGREEMENT titled accordance with the Dispute Resolution Section,each VED SYSTEM BUDGET in its share of the said budget in accordance with the installments provided though the APPROVED SYSTE!1T BUDGET Party provide payment toward same year. In the interim, until the APPROVED been approved b for under 6.3 as Dispute Resolution,the parties shaI]proceed on the basis that BUDGET March to of that [TDGET is establish by BUDGET for any calendar year shall be at least equal to the APPROVED SYSTEM BUDGET for the immediately preceding }'ear and will advance pa�mentsEtD SYSTEM accordance with that understanding on the dates provided for in Article 6.3. o Oshawa in 6.6 6.7 9 In the event of a shortfall in the APPROVED CAPITAL shall advise the the Council of each Potential shortfa!l being determined Party immediate] upon the COMMITTEE APPROVED SYSTEM BUDGET for and shall e�icon s aft SUPP�E shortfall or Municipal Council and in the event of a failure of an consideration of each TAR, on a SUPPLEMENTARY APPROVED SYSTEM BUDGET within thirty party s Y party's Municipal Council to agree days following receipt of the draft SUPPLEMENTARY APPROVED SYSTEM BUDGET by that party, the amount of the budget will be established in accordance ' this AGREEMENT titled Dispute Resolution, with the Section of SUPPLEMENTARY APPROVED SYSTEM BU Upon the determination of the Resolution Section or otherwise, each DGET in accordance with the Dispute Oshawa agrees to allocate its share equal to, I/5 of the total increas Patty steal! provide payment to Oshawa of, and SUPPLEMENTARY APPROVED SYSTEM B e as contained in the such determination. BUDGET within five (5) days following Any amount of uncommitted or unspent contained in the APPROVED SYSTEM BUDGET e immediately following Year's budget requirement. Section 7 7.1 7.2 7.3 Term end of the calendar year as shall be applied against the The Tenn of this AGREEMENT shall commence on the date i ACCEPTANCE is memorialized b defined and in accordance with 5ecironx5 execution of a System Acce n which SYSTEM Provided in Article 7.5 of the Motorola Agrement.eExcept as by further agreement inswriti g of eveME will continue in effect until it is terminated r3'party to it At (east once prior to each ten AGR least on (10) year arm ivers T, and immediately following the confrmat on of the effective�date f this amalgamation of one parry to another territories of either a Parry or the annexation of an of the Of this AGREEMENT, or a non-party municipality to another Y territory' or MENT,,the Committee shall review its provisions following the date technical and other material considerations that then a Municipal Council of each taking into account Party whether this AGREEMENT should be ern naed or whether any of its provisions, including the ownership shares and and the basis thereof, should be cost sharing or COMMITTEE shall be considered b ended. The report and recommendations of the (30) days following receipt of the by a The Councils of each same period each MMITEE's re y Party within thirty amended. Parry shall decide whether this AGREEMENT should be terminated or If, in the case of an amalgamation or annexation referred to in Article Councils of the parties do not agree with the recommendations of the terminate or amend this AG 7.2, the Municipa! settle the terms of the question or a lions that will be r CG E to > the parties shall meet within five 5 Resolution under Section 8. 1f agreement of every � ) days to not achieved within such period, the issue of referred for resolution ue Dispute be determined by Dispute Resolution may paw to such question or questions o the content of the question or questions to giving notice in accordance with Section 8 o Phis ,�Gany party to Dispute Resolution by question or questions shall be determined by REEMENT and the context of the . . Binding Arbitration thereunder. 10 Notwithstanding the foregoing the question of termination of this AGREEMENT shall not be referred to Dispute Resolution. but shall only be determined exclusiveh b agreement of all the parties. . Y 7A No parry may withdraw from the joint ownership. operation or maintenance SYSTEM without the consent of every part. of the 7.5 In the event that the SYSTEM, or any component parties will use any funds under a policy ofsurance that is contracted four u under the AGREEMENT, to completely replace the SYSTEIy or the damaged component and.to the extent that any insurance funds fail to completely cover the cost of the re air replacement,each party will contribute an equal portion to the shortfall unless,where r or the SYSTEM as a whole that must be replaced, and a majority of the parties do not to replace the SYSTEM, in which case any insurance proceeds will be divided egWlh Y between the parties and this AGREEMENT will be terminated. Section s Dispute Resolution 8.1 If there is dispute between the parties to this AGREEMMENT with respect to an 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 maintain reasonable service levels, but excluding matters determined by,and with, nt authority of, the CO meet or MMITTEE in accordance with Section 5,the within tl�e by their respective City Managers/ChiefAdministrative Officers,or as represented may direct,hereby agree to meet and discuss the matter within five(5)days fro to ng receipt of notice by any one patty to each of the others with the objresolving ective of ml Y dispute. B 8.2 Following meetings of the parties as provided for above, in the event that a mute satisfactory resolution is not achieved within thirty ly above notice by the other parties an rt}'t30)days following the receipt of the the other in which event the parties shall p proceed dtto Binding Arbitration and the to 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 of this Section, the parties shall throughout the endeavour to perform their respective obligations under the terms of this AGREEME'7 to the best of their abilities and in good faith, T Section 9 Indemnity and 1nsurance 9.1 Oshawa agrees to maintain general liability insurance in an amount of not less than twenty five million dollars(S25,000,000)against legal liability that may result from the operation and maintenance of the SYSTEM and to ensure that al I polices of insurance are endorsed to provide that every parry 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 of the no cross-liability clause, both as satisfactory to the Treasurers of the parties. parties and a 9.2 With regard to any third party claim in excess of the polic, limits of any insurance placed under this AGREEMENT, each Pam,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 terns 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 invest' 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 to 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 L IS 2H9 Fax: 905-683-8119 Attention: The Corporation of the Municipality of Clarington 40 Temperance Street Bowmanville,Ontario L1C 3A6 Fax: 905-623-0584 Attention: The Corporation of the City of Oshawa 50 Centre Street South Oshawa,Ontario LIH 3Z7 Fax: 905-436-5623 Attention: Commissioner of Corporate Services The Corporation of the City of Pickering One The Esplanade Pickering,Ontario L I V 6K7 Fax: 905-839-6327 Attention: The Corporation of the Town of WhAbv 1" 575 Rossland Road East Whitby, Ontario L IN 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 of Clarington and Whitby on a fee-for-service basis from the Oshawa Fire Hall#I Communications Centre as described in Exhibit C-1 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? No party or parties shall call into question,directly or indirectly,in an whatsoever in law or in equity or before a Court or any adminitrative tribunal,te 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 SYSTEM ACCEPTANCE and it is agreed that there is no covenant,promise,agreement.condition 13 precedent or subsequent,warranty this AGREEMENT.. in or representation or understanding,whether oral or written,other than set forth this AGREEMENT with respect to the subject matter of 12,5 The parties hereto shall with reasonable diligence do all such things and provide al reasonable further assurances as may be required to fulfill their obligations pursuant to P 1 such this AGREEMENT. Each parry agrees to provide whatever further documents or instruments may be considered by the other parties to be reasonably neces or desirable to effect the purpose of this AGREEMENT and cY time during the currency of this AGREEMENT 'out its Provisions at any 12.6 The rights and obligations as contained within this AGREEMENT shall accrue severally to and against each of Ajax, Clarington,Oshawa, and apply failure on the part of one party to comply with the terms of this AGREEMENT Whitby and the be taken as a failure on the part of any other party or parties.The rights of shall not be severally enforced. Party may 12,7 No supplement,amendment or waiver of or under this AGREEMENT(excepting of change of address as contemplated in Section 10)shall be binding unless executed in writing b the P g notice $ Y Ply or parties to be bound thereby and no waiver by a party of any Provision of this AGR-EMENT 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 to the performance of any of the terms of this AGREE�shall be in default with respect due to any farce majeure,strike,lock-out,labour dispute��l if any commotion.w or similar event, invasion,the exercise of military power,act of G is controls,inab:Iity to obtain any material or service,or an c$a�5ernment regulations or control of the party,unless such Iack of control results fiom a seibc and the r Cas able resources. 12.4 This AGREEMENT shall enure to the benefit of and be binding u their respective successors and assigns. 8 Pon the parties and 12.10 The parties shall act lem co-operatively in good faith,and with expedition in implementing the intent of this AGREEMENT P enting 12.11 No Party shall commence"Beneficial Use"of the System or an SYSTEM ACCEPTANCE under section 8 of the Motorola A Y part thereof prior to $Teem ent. 12.12 Time shall be of the essence of this AGREEMENT. TN WITNESS WHEREOF each of the parties hereto has affixed its corporate seal b Of its proper officers on the date inscribed on the first page of this Agreement, in counte the execution of Schedules " y the hands A ••B" «C- «D„ and "E" hereto b rparts, by Pickering and Whitby,respectively. Y Aja2c, Clarington, Oshawa, Schedule "A" Si natory )Pa a for the Town of A'az This is Schedule "A" to the Ownership, Operation and Maintenance A¢reem Corporation of the Town of Ajar, the Corporation of the Municipality of Clari ent between the Corporation of the City Of Oshawa, the Co ngton, the of the Town of Whitby dated March 27, 20�°ration of the City of Pickering and the Corporation TION OF THE rm-�!117"m Si natory Pa a for the Schedule[unicB'alih This is Schedule 'B" to the °f Ciarin �n Corporation of the Town of AOe the Co Operation and Maintenance A Corporation of the City of Oshawa. the Corporation of the Ci Agreement between the Corporation of the Municipality of Cl�rigton, the of the Town of Whitby dated March 27, 2002. ty of Pickering and the Corporation THE CORPORATION OF THE hiiJ1VICIPAI,ITY OF C�LNGTON Mayo 4 C�� 18 Schedule ule Sianatory pane far the City of Oshawa This is Schedule"C"to the Ownership,Operation and Maintenance Corporation of the Town of Ajax, the Corporation oFthe Munici al' e Agreement between the Corpo�tion of the Cit< of Oshawa, the Corporation of the Cite of � °fClarington the of the To%n of Whitbv dated March 27,2002• Pickering and the Corporation THE CORPORATION OF THE CITY OF OSHA WA k Mayo Schedule"D" Si aatory Pa a for the City of Pickernn This is Schedule"D" to the Ownership, Operation and Maintenance Agreement Corporation of the Town of Ajax, the Corporation of the Municipality f C arin between the Corporation of the City of Oshawa, the Co � n, the of the Town of Whitby dated March 27, 2002 Corporation °f the City of Pickering and the Corporation THE CORPORATION OF THE CITY OF PICKER NG Mayor 4er Schedule "E" Si nat" Pa a %r the Toa n of Wbitbv 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 Cla Corporation of the City of Oshawa, the Corporation >-ington, the of the Town of Whitby dated March 27, 2002 of the City of Pickering and the Corporation THE CORPORATION OF THE TOR'\;OF WHITBY 19 Appendix"I" Rules of Arbitration Jurisdiction and Sco • The Arbitral Tribunal (as defined below) appointed of the Arbitration Act, 1991 (Ontario) aunder Arbitration ued 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 attempt to 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 p to arty 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; . (� 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 Iimitation, 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 suppiv 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. ARPointment of Arbitral Tribunal �. 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 of a 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 parry 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 Claimants)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 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 Meetin 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; try (f) requiring earlier disclosure of intended witnesses and documents; (g) limiting the number of experts or refusing to allow expert evidence; (h) requiring the use of a single independent expert to deal with a particular issue or any number of issues; (i) requiring experts to file written reports in place of giving oral testimony; 0) requiring expert reports earlier in the process than required under this Schedule; (k) determining when and in what order experts will be heard; (1) setting dates,times and locations for the Arbitration' (m) ordering pre-arbitration meetings as required; (n) fixing and awarding costs, including solicitor/client costs and the costs of the Arbitration. Exchantye 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 written statement to the Claimant(s) and the Arbitral Tribunal outlining the Respondent(s)' 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 of the 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. 7; 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. A reed Statement of Facts 22• The parties shall, within a period of time 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 Hearin s 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. Ev�dence 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 soie 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 document in the document baottis, unless the arty s contained the oral hearing to the other party and the Arbitral Tribunal.ection within seven (7)days of 32. The Arbitral Tribunal may allow a to introduce into document which was not disclosed or subrrtitted at feast fourteen e(14thdays 1 hang a commencement of the hearing, but the Arbitral Tribunal may take}that faiillureeithe 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, to submit to being examined by the Arbitral Tribu, r rider oath and claiming ubmtigh the documents that the Arbitral Tribunal requires. M-4nesses 34. The Arbitral Tribunal may determine the manner in which witnesses are to and may require a witness, other than a , be examined oral hearing during the testimony of another witness.the Party's representative, to leave the 35. Where the Arbitral Tribunal allows the evidence of a witness to be presented statement, the other party may require that the witness be present at an oral hearing for written cross-examination, g for 36. The Arbitral Tribunal may call a witness on the motion of the Arbitral where a witness is called by the Arbitral Tribunal the Tribunal, but examine that witness and call evidence in rebuttal. Parties have the right to Cross- examine 37. The Arbitral Tribunal may appoint one or more experts to report on specific determined by the Arbitral Tribunal and may require a issues to be relevant information or the produce, or to Provide access Yano give the expert any goods or other property for inspection by the expert. Y relevant documents, 38. The Arbitral Tribunal shall communicate the expert's terms of reference to 39. the Parties. 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. 46• Upon receipt of the expert's re Port, the Arbitral Tribunal shall inform the parties of the contents of the report and the parties shall their opinion on the report. be given an opportunity,to express, in writing, 41. The expert shall, at the request of a documents, goods or other property per' make available to that party for inspection all Provided with in order to prepare elexpert expert's report Possession nd the expert which the expert was Party with a fist of all documents,goods or other roe provide that pro rty not in the expert's possession =5 but with which the expert was provided in order to prepare descri tion and location of those documents,goods or other rthe expert's repo P � P rt, and 42. P p pertv. If a arty requests or if the Arbitral Tribunal considers it necessary, the expert delivery of the expert's written or oral report, be present at an oral Parties will have the o P shall, after Fportunity to cross-examine the ex hearing where the rebuttal, pert and call evidence in Default of party 43• Where a/the Clairnant(s), without sufficient cause, and after fve from the Arbitral Tribunal, fails to communicate the Claimant(s)+ statem within the required time, the Arbitral Tribunal ma t (j) days written notice respect to that claim. Y erminate the Arbitral Tribunal cwa th 44. Where the Respondent(s), without sufficient cause and after five from the Arbitral Tribunal, fails) to communicate the Res defence within the required time, the to CO l Tribunal (S) days written notice award shall not be made solely on the default of Pondent(s)' statement of Tribunal shall require the Claimants}to sub shall continue the Arbitration. An the Respondent(s). The Arbitral may require for the making of the award, mgt such evidence as the Arbitral Tribe 45. Where a part},, without sufficient cause, fails to appear Produce documentary evidence, the Arbitral Tribunal y at an contin oral h the Arbitral Tribunal shall make an award based u eating or fails to the Arbitration and Tribunal. Pon the evidence before the Arbitral 46. Where a Pty,without sufficient cause,fails to comply with an Arbitral Tribunal or any requirement under the Arbitration Act,order or this y order or direction of the the Arbitral Tribunal may grant such relief as the Arbitro Tribunal deem including costs. is Schedule, s appropriate, General Powers ofArbitra!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 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 Sche or determined by the Arbitral Tribunal where the Arbitral Tribunal it considers just and appropriate in the circumstances. it Reeresentatinn ,d 48. The parties may be represented or assisted bV any person during Arbitration. 49. Where a party intends to be represented or assisted by a lawyer, the artier shall,writing, advise the other pam of the la+��er's name and the capacity in which the lawyer is acting,at least five(5)days before any scheduled meeting or heating. 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. 711 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 Arbitration. Unless otherwise directed by the Arbitral alTribun 1, alduring osts of the Arbitral Tribunal will be paid equally by the Claimant(s)and the Respondent(s).