Agreement in
respect of Costs (DRAFT)
THIS AGREEMENT made the _____ day of ___________________, 2011
AMONG:
CITY OF OTTAWA
(the “City”)
- and -
Ottawa
Sports and Entertainment Group INC.
(“OSEG Inc.”)
- and -
Ottawa Sports and Entertainment
Group, a general
partnership established
under the laws of the Province of Ontario
(“OSEG Partnership”)
- and -
LANSGREEN
INVESTMENTS inc., Shenkman Lansdowne Ltd.,
Trinity
Lansdowne Ltd. and Keljay Ltd.
(collectively, the “Members” and each is a “Member”)
A.
WhereaS the City desires to redevelop Lansdowne Park
and its facilities located in Ottawa, Ontario;
B.
WHEREAS on June 9, 2010 a report from
the City Manager entitled “Lansdowne Partnership Plan (LPP)
Implementation Report”, Corporate Services and Economic Development Committee
Report 55A, together with
certain other related reports and presentations, was tabled with Council (the “Lansdowne Partnership Plan”);
C.
WHEREAS the Lansdowne Partnership Plan sets out the manner in which a
redevelopment of Lansdowne Park is proposed to be undertaken by the City;
D.
WHEREAS on June 17, 2010, Council received the Lansdowne Partnership Plan;
E.
WHEREAS on June 28, 2010, Council approved the
Lansdowne Partnership Plan, as amended by certain motions;
F.
Whereas as part of the approval of the Lansdowne
Partnership Plan, Council determined that it would “[a]pprove the Project
Agreement Framework, as outlined in this report and described in Document 18,
and authorize the City Manager to negotiate and execute, on behalf of the City,
the Project Agreements, described in this report and in Document 18”;
G.
WHEREAS on November 19 to 22, 2010, Council passed additional by-laws and
resolutions on the Lansdowne Partnership Plan;
H.
WhereaS an application for an order pursuant to
section 273 of the Municipal Act, 2001 was
brought by Friends of Lansdowne Inc., Gary Sealey and Doug Ward seeking to
quash for illegality the by-laws and resolutions of Council made on
June 28, 2010 and on November 19 to 22, 2010 (as amended from time to
time, the “Application”);
I.
WHEREAS the Parties hereto wish to set forth their respective rights and
responsibilities should Council’s by-laws and resolutions in respect of the
Project Agreement, the First Cost Sharing Agreement and/or the Second Cost
Sharing Agreement (as defined below) be
quashed for illegality pursuant to, or in connection with, the Application or
should other relief be granted in connection with the Application which
prevents the Parties hereto from carrying-out, enforcing, undertaking and/or
completing their respective rights and obligations under the Project Agreement,
the First Cost Sharing Agreement and/or the Second Cost Sharing Agreement;
J.
WHEREAS an application for judicial review in respect of the Project was filed by
the Lansdowne Park Conservancy on August 17, 2011 bearing Court File No.
11-DC-1758 (as amended from time to time, the “Judicial Review”); and
K.
WHEREAS the Parties hereto wish to set forth their respective rights and
responsibilities should relief be granted in connection with the
Judicial Review which prevents the Parties hereto from carrying-out, enforcing,
undertaking and/or completing their respective rights and obligations under the
Project Agreement, the First Cost Sharing Agreement and/or the Second Cost
Sharing Agreement.
NOW THEREFORE IN CONSIDERATION of the mutual covenants and agreements contained in
this Agreement and for other good and valuable consideration (the receipt and
adequacy of which are acknowledged), the Parties agree as follows:
1.1
In this
Agreement, including the recitals to this Agreement, unless the context
otherwise requires:
(a) “Agreement” means this agreement in respect of costs, as amended from time to time in accordance with its provisions.
(b) “Applicable Laws” means all present and future laws, statutes, regulations, treaties, decrees having the force of law, binding judgments of relevant courts of law and all present and future official directives, rules, consents, approvals, authorizations, guidelines, orders and policies of any Relevant Authority having the force of law binding on or affecting the Person referred to in the context in which the term is used or binding on or affecting the property of that Person.
(c) “Application” has the meaning attributed to such term in the Recitals of this Agreement.
(d) “Arbitration Act” means the Arbitration Act, 1991 (Ontario).
(e) “Audited Party” has the meaning attributed to such term in Section 3.7(c).
(f) “Auditing Party” has the meaning attributed to such term in Section 3.7(c).
(g) “Business Day” means any day, except Saturdays and Sundays, on which banks are generally open for business in Ottawa, Ontario.
(h) “Business Entity” means a partnership, limited partnership, co‑owners arrangement or other business entity, other than a corporation with share capital.
(i) “By-law” means any by-law of Council pursuant to which the entry into of the Project Agreement, the First Cost Sharing Agreement and/or the Second Cost Sharing Agreement by the City was approved.
(j) “Closing” shall be defined and determined in the manner contemplated by the Project Agreement as if the Project Agreement was in full force and effect.
(k) “Confidential Information” has the meaning attributed to such term in Section 6.1.
(l) “Council” means the Council of the City.
(m) “Dispute” means any disagreement, failure to agree or other dispute between two or more of the Parties arising out of or in connection with this Agreement.
(n) “First Cost Sharing Agreement” means the cost sharing agreement between OSEG Inc. and the City, dated May 14, 2010.
(o) “First Cost Sharing Project Contracts” shall have the meaning given to the term “Project Contracts” in the First Cost Sharing Agreement as if the First Cost Sharing Agreement was in full force and effect.
(p) “Interest Rate” means five percent (5%) per annum over the annual rate of interest announced by Royal Bank of Canada (or its successor), or any other Canadian chartered bank agreed by the Parties, from time to time as its reference rate then in effect for determining interest rates on Canadian dollar commercial loans made by it in Canada, calculated and compounded monthly.
(q) “Judicial Review” has the meaning attributed to such term in the Recitals of this Agreement.
(r) “Lansdowne Partnership Plan” has the meaning attributed to such term in the Recitals of this Agreement.
(s) “Option Agreement” has the meaning attributed to such term in Section 7.1(a).
(t) “OSEG” means OSEG Inc. and OSEG Partnership, jointly and severally.
(u) “Parties” means collectively the City, OSEG Inc., OSEG Partnership and the Members and “Party” means any of them.
(v) “Penalties” means any costs, expenses, fees and other charges paid by a Party pursuant to a Second Cost Sharing Project Contract or a Project Agreement Contract including in connection with the enforcement of any rights or remedies against such Party thereunder, other than:
(i) costs, expenses, fees and other charges paid by a Party pursuant to a Second Cost Sharing Project Contract or a Project Agreement Contract as consideration for goods provided and/or services rendered; and
(ii) costs, expenses, fees and other charges paid by a Party pursuant to a Second Cost Sharing Project Contract or a Project Agreement Contract, including in connection with the enforcement of any rights or remedies against such Party thereunder, to the extent that such costs, expenses, fees and other charges result from any of the following:
(iii) in the case of the City, an act or omission of any other Party and in the case of a Party other than the City, an act or omission of the City;
(w) an act or omission by such Party which was approved by, in the case of the City, any other Party, and in the case of a Party other than the City, the City (excluding negligence or wilful misconduct on the part of such Party in carrying out such approval);
(x) an act or omission of such Party pursuant to a direction given by or policy of, in the case of the City, any other Party, and in the case of a Party other than the City, the City, in each case conducted in the manner directed by such other Party or conducted pursuant to its policy (and excluding negligence or wilful misconduct on the part of the Party in carrying out such direction or policy) and which direction or policy was one to which a reasonable Person would not raise objection with such other Party prior to performance; or
4 an act or omission of such Party pursuant to a contractual obligation of such Party to, in the case of the City, any other Party, and in the case of a Party other than the City, the City (excluding negligence or wilful misconduct on the part of such Party in carrying out such contractual obligation),
provided that “Penalties” shall exclude any costs, expenses, fees and other charges resulting from or in connection with the Application or the Judicial Review.
(y) “Permits” means all permissions, consents, approvals, certificates, permits, licenses, statutory agreements and authorizations required from any Relevant Authority and all necessary consents and agreements required from any third parties or otherwise to construct the Project and otherwise to carry out the Project in the manner contemplated and agreed to by the Parties.
(z) “Person” means an individual, legal personal representative, corporation, body corporate, firm, partnership, trust, trustee, syndicate, joint venture, unincorporated organization, other Business Entity or Relevant Authority.
(aa) “Project” means the redevelopment of Lansdowne Park, pursuant to the Lansdowne Partnership Plan and the Project Agreement (as if the Project Agreement was in full force and effect).
(bb) “Project Agreement” means the project agreement respecting the redevelopment of Lansdowne Park pursuant to the Lansdowne Partnership Plan, to be entered into by the City, OSEG Partnership and the Members.
(cc) “Project Agreement Contract” means any agreement, indenture, contract, lease, deed of trust, licence, option, instrument or other commitment, whether written or oral in respect of a Project Agreement Cost contemplated by or entered into pursuant to the Project Agreement.
(dd) “Project Agreement Cost” means the costs, expenses, fees and other charges to be reimbursed by one or more Parties to another Party or Parties pursuant and subject to the terms and conditions of the Project Agreement (as if the Project Agreement was in full force and effect), provided that it will not include costs, expenses, fees and other charges which have been reimbursed under or are reimbursable under the First Cost Sharing Agreement or Second Cost Sharing Agreement pursuant to Section 3.2.
(ee) “Reimbursed Party” has the meaning attributed to such term in Section 3.3.
(ff) “Reimbursing Party” has the meaning attributed to such term in Section 3.3.
(gg) “Relevant Authority” means any Canadian government, including any federal, provincial or municipal government (including the City), and any Canadian government agency, tribunal, commission or other authority exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, government.
(hh) “Relevant Date” has the meaning attributed to such term in Article 2.
(ii) “Request for Reimbursement” has the meaning attributed to such term in Section 3.3.
(jj) “Second Cost Sharing Agreement” means the amended and restated cost sharing agreement between OSEG Inc., OSEG Partnership and the City, dated September 3, 2010 and amended and restated on August _____, 2011, as further amended from time to time.
(kk) “Second Cost Sharing Eligible Costs” shall have the meaning given to the term “Eligible Costs” in the Second Cost Sharing Agreement as if the Second Cost Sharing Agreement was in full force and effect, provided that it will not include costs, expenses, fees and other charges which are attributable to the First Cost Sharing Agreement pursuant to Section 3.2.
(ll) “Second Cost Sharing Project Contract Costs” means the Second Cost Sharing Eligible Costs of a Second Cost Sharing Project Contract excluding any Penalties thereunder.
(mm) “Second Cost Sharing Project Contracts” shall have the meaning given to the term “Project Contracts” in the Second Cost Sharing Agreement as if the Second Cost Sharing Agreement was in full force and effect.
(nn) “Shared City Costs” means costs reimbursed by OSEG prior to the Relevant Date in respect of the City’s First Cost Sharing Project Contracts, Second Cost Sharing Project Contracts and/or Project Agreement Contracts that were covered by the First Cost Sharing Agreement, Second Cost Sharing Agreement or Project Agreement, respectively.
(oo) “Shared OSEG Costs” means costs reimbursed by the City prior to the Relevant Date in respect of OSEG’s First Cost Sharing Project Contracts, Second Cost Sharing Project Contracts and/or Project Agreement Contracts that were covered by the First Cost Sharing Agreement, Second Cost Sharing Agreement or Project Agreement, respectively.
(pp) “Transmission” has the meaning attributed to such term in Section 9.
1.2
In this
Agreement:
(a) the division into Sections and Articles and the insertion of headings are for convenience of reference only and do not affect the construction or interpretation of this Agreement;
(b) the expressions “hereof”, “herein”, “hereto”, “hereunder”, “hereby” and similar expressions refer to this Agreement and not to any particular portion of this Agreement;
(c) references to any Section or Article are references to a Section or Article, as applicable, of this Agreement;
(d) “including” or “includes” means “including (or includes) but is not limited to” and shall not be construed to limit any general statement preceding it to the specific or similar items or matters immediately following it;
(e) references to any legislation, statutory instrument or regulation or a section thereof, unless otherwise specified, is a reference to the legislation, statutory instrument, regulation or section as amended, restated and re-enacted from time to time;
(f) references to currency or to “$” shall be to lawful currency of Canada;
(g) words in the singular include the plural and vice-versa and words in one gender include all genders; and
(h) the Schedules attached hereto form part of this Agreement.
1.3 The term of this Agreement shall commence on the date hereof and end on the Closing.
2. Results
of Application and
Judicial Review
then, unless otherwise set out in this Agreement, the Parties agree that no Party shall have any further obligations or liabilities to any other Party of any nature or kind in connection with the Project Agreement, the First Cost Sharing Agreement and the Second Cost Sharing Agreement, as applicable, on and as of the latest of the following dates (the “Relevant Date”):
2.3 the date on which each of the Parties has exhausted all rights of appeal or to seek leave to appeal from such decision, order, stay or other relief, where one or more of the Parties have exercised such rights; or
2.4 the date on which the time for exercising the last applicable right of appeal or to seek leave to appeal from such decision, order, stay or other relief has expired in respect of each Party, without any Party having exercised such right.
3. Treatment of First Cost Sharing
Agreement, Second Cost Sharing Agreement AND/OR Project Agreement
3.1
Where an
event described in Section 2.1 or Section 2.2 occurs, in addition to the terms and
conditions in this Agreement, this Article 3 shall govern the Parties on and following the
Relevant Date in respect of the First Cost Sharing
Agreement, the Second Cost Sharing Agreement or the Project Agreement.
3.2
In
respect of
payments remitted by the City to OSEG under the First Cost Sharing Agreement,
the Second Cost Sharing Agreement or the Project Agreement prior to the
Relevant Date for Shared OSEG Costs, payments remitted by OSEG to the City
under the First Cost Sharing Agreement, the Second Cost Sharing Agreement or
the Project Agreement prior to the Relevant Date for Shared City Costs, such
payments may be retained by the City or OSEG, as applicable, notwithstanding the occurrence of an event described in
Section 2.1 or
Section 2.2.
(a) is received by the Reimbursing Party within one hundred and fifty days (150) after the Relevant Date;
(b) identifies the Second Cost Sharing Project Contract or Project Agreement Contract, as applicable, under which reimbursement is sought;
(c) provides a summary of the nature of the Second Cost Sharing Project Contract Costs requested for reimbursement under the applicable Second Cost Sharing Project Contract or a summary of the nature of the Project Agreement Costs requested for reimbursement under the applicable Project Agreement Contract, as applicable;
(d) provides copies of all available invoices, receipts or other instruments in respect of such Second Cost Sharing Project Contract Costs or Project Agreement Costs, as applicable;
(e) certifies that the Second Cost Sharing Project Contract Costs or Project Agreement Costs, as applicable, for which reimbursement is sought:
(i)
are due
and payable in full, or have been paid in full under the terms and conditions of
the Second Cost Sharing Project Contract or Project Agreement Contract,
as applicable;
(ii)
have
been actually and properly incurred by the Reimbursed Party;
(iii)
are Second
Cost Sharing Eligible Costs or Project Agreement Costs, as
applicable; and
(iv)
do not include any Penalties.
3.4
Notwithstanding
any other provision of this Agreement, the Reimbursing Party shall not be
obligated to reimburse Second Cost Sharing Project Contract Costs or Project
Contract Costs that:
(a) in the case of Second Cost Sharing Project Contract Costs, are in excess of the lesser of the following, including any payment in respect thereof under Section 3.2:
(i)
the
dollar amount in Schedule “B” set out under the heading “City’s Share” or
“OSEG’s Share”, as applicable, in respect of the applicable Second Cost Sharing
Project Contract; or
(ii)
the
percentage of Second Cost Sharing Project Contract Costs in Schedule “B” set
out under the heading “City’s Share” or “OSEG’s Share”, as applicable, in
respect of the applicable Project Contract,
provided that
notwithstanding the foregoing, where the Project Agreement has been entered
into by the Parties, the Reimbursing Party shall be obligated to reimburse the
amount that would be reimbursed in respect of the same costs as are included in
the Second Cost Sharing Agreement Contract Costs if reimbursement was sought
and made pursuant to the Project Agreement, as if the Project Agreement was in
full force and effect.
(b) are not reasonable;
(c) are not incurred in a manner and in an amount which is in accordance with applicable industry standards;
(d) are not directly related to the Project;
(e) are not a cost or expenditure that would not otherwise have been incurred by the Party but for the Project;
(f) are not an actual or contemplated cash outlay by or on behalf of the Reimbursed Party; and
(g) are not incurred with respect to the period after June 29, 2010 and on or before the Relevant Date, provided that Second Cost Sharing Project Contract Costs or Project Contract Costs incurred during the termination notice period (not to exceed thirty days after the Relevant Date) under a Second Cost Sharing Project Contract or a Project Agreement Contract shall be reimbursable by the Reimbursing Party if such Second Cost Sharing Project Contract Costs or Project Contract Costs are otherwise reimbursable under the other terms of this Agreement.
3.5
Amounts
claimed for reimbursement under a Request for Reimbursement shall be paid by
the Reimbursing Party within twenty (20) Business Days of receipt thereof,
provided that such Request for Reimbursement is proper, accurate, correct and
not in dispute. The Reimbursed Party
shall be entitled to receive interest at the Interest Rate on any overdue
accounts. The Reimbursed Party shall not
be entitled, however, to any interest upon any amounts claimed under a Request
for Reimbursement on account of a delay in its approval by the Reimbursing
Party resulting from any defect in the invoice, or for any invoice that is
inaccurate, incorrect, or in dispute.
(a) All accounts, records, invoices, receipts and vouchers that are kept by or available to the City or OSEG under a First Cost Sharing Project Contract, Second Cost Sharing Project Contract or Project Agreement Contract shall at all times be open to audit, inspection and examination by or on behalf of the other Party.
(c) The costs of any audit, inspection or examination of such records described in Section 3.7 by the City or OSEG shall be borne by the Party conducting the audit (the “Auditing Party”) unless the same results in a determination that any amount to be paid by or to the Auditing Party was understated or overstated by more than ten percent (10%) in the period audited, in which case the costs of such examination shall be borne by the Party being audited (the “Audited Party”), to be paid forthwith upon the Audited Party’s receipt of an invoice from the Auditing Party therefor. Any under-payments or over-payments between the Parties shall be resolved promptly and paid.
4. REPRESENTATIONS, Warranties and Covenants
Each Party hereby represents and warrants to the other Parties, and agrees as follows:
4.1 that it has the full power and authority to enter into this Agreement and to perform its obligations hereunder; and
4.2 that its execution and delivery of, and its performance under this Agreement, have been duly authorized by all necessary municipal, company, corporate or partnership action, and have not, do not and will not conflict with, violate, result in a breach or default of or otherwise materially adversely affect any rights of any third person or entity, whether now existing or hereafter arising or occurring.
Upon the Relevant Date, in respect of each of
the Project Agreement, the First Cost Sharing Agreement and the Second Cost
Sharing Agreement:
5.1
each of
OSEG Inc., OSEG Partnership and the Members, on its own behalf and on behalf of
its shareholders, directors, officers, employees, agents, representatives,
affiliates, partners, insurers, as applicable, and its and their respective
heirs, executors, administrators, other legal representatives, successors and
assigns, as applicable (collectively referred to in this paragraph as the “OSEG Releasors”) hereby releases and forever discharges the City,
and its officers, employees, councillors, mayor and agents and its and their
respective successors and assigns, as applicable (collectively referred to in
this paragraph as the “City Releasees”) from any and all
actions, causes of action, claims, demands, covenants, obligations, agreements,
liabilities, costs and damages, whether absolute or contingent and of any
nature whatsoever (including any claim for negligence or any other tort) which
the OSEG Releasors now have or hereafter can, shall or may have, against the
City Releasees for or by reason of or in any way arising out of any cause,
matter or thing whatsoever in respect of the Project Agreement, the First Cost
Sharing Agreement and/or the Second Cost Sharing Agreement, except as may be
otherwise set out in this Agreement; and
5.2
the
City, on its own behalf and on behalf of its officers, employees, councillors,
mayor and agents and its and their respective successors and assigns, as
applicable (collectively referred to in this paragraph as the “City Releasors”) hereby releases and forever discharges each of
OSEG Inc., OSEG Partnership and the Members and its shareholders, directors,
officers, employees, agents, representatives, affiliates, partners and
insurers, as applicable, and its and their respective heirs, executors,
administrators, other legal representatives, successors and assigns, as
applicable (collectively referred to in this paragraph as the “OSEG Releasees”) from any and all actions, causes of action,
claims, demands, covenants, obligations, agreements, liabilities, costs and
damages, whether absolute or contingent and of any nature whatsoever (including
any claim for negligence or any other tort) which the City Releasors now have
or hereafter can, shall or may have, against the OSEG Releasees for or by reason
of or in any way arising out of any cause, matter or thing whatsoever in
respect of the Project Agreement, the First Cost Sharing Agreement and/or the
Second Cost Sharing Agreement, except as may be otherwise set out in this
Agreement.
6.1
In this
Article, the term “Confidential Information” means all information which
is supplied by or on behalf of a Party (whether before or after the date of
this Agreement), either in writing, orally or in any other form, directly or indirectly
from or pursuant to discussions with another Party or which is obtained through
observations made by the Party receiving such information. “Confidential
Information” also includes all analyses, compilations, studies and other
documents whether prepared by or on behalf of a Party which contain or
otherwise reflect or are derived from such information.
6.2
Each
Party will hold in confidence any Confidential Information of another Party,
provided that the provisions of this Article will not restrict a Party from
passing such Confidential Information of another Party to its officers,
employees, advisors, councillors, mayor and/or agents, provided such Persons
are subject to similar confidentiality obligations to enable it to perform (or
to cause to be performed) or to enforce its rights or obligations under this
Agreement.
6.3
The
obligation to maintain
the confidentiality of the Confidential Information does not apply to
Confidential Information:
(a) which the disclosing Party confirms in writing is not required to be treated as Confidential Information;
(b) which is or comes into the public domain otherwise than through any disclosure prohibited by this Agreement;
(c) to the extent any Party is required to disclose such Confidential Information by Applicable Laws, including the Municipal Freedom of Information and Protection of Privacy Act (Ontario) or any other applicable laws (provided that such Party shall take all reasonable steps to limit such disclosure and any subsequent disclosure of such Confidential Information; or
(d) to the extent consistent with any City policy the details of which have been provided to OSEG in writing prior to the disclosure of the Confidential Information to the City and subject to OSEG’s confirmation in writing that the Confidential Information is not required to be treated as such.
7. Nature
of Relationship
7.1
The
Parties acknowledge that:
(a) none of OSEG Inc., OSEG Partnership and/or the Members is the agent of the City except as otherwise contemplated in the Option Agreement between the City and OSEG Partnership dated August 9, 2011 (the “Option Agreement”) and the City is not the agent of OSEG Inc., OSEG Partnership and/or the Members;
(b) OSEG Inc., OSEG Partnership and/or the Members are not partners or joint venturers with the City and the City is not a partner or joint venturer with OSEG Inc., OSEG Partnership and/or the Members; and
(c) nothing in this Agreement shall be construed as:
(i)
making
OSEG Inc., OSEG Partnership and/or the Members and the City partners or joint
venturers;
(ii)
making
OSEG Inc., OSEG Partnership and/or the Members an agent of the City except
as otherwise contemplated in the Option Agreement or making the City an agent
of OSEG Inc., OSEG Partnership and/or the Members; or
(iii)
imposing any
liability as partner, joint venturer, principal or agent on the City or OSEG
Inc., OSEG Partnership and/or the Members, as the case may be, except as
contemplated in the Option Agreement.
7.2
Without
limiting the generality of Section 7.1, none of OSEG Inc., OSEG Partnership and/or the
Members shall have authority to act, or to hold itself out, as agent of the
City or to bind the City to any third party, except as contemplated in
the Option Agreement, and the City shall not have the authority to act, or to
hold itself out, as agent of OSEG Inc.,
OSEG Partnership and/or the Members or to bind OSEG Inc., OSEG Partnership
and/or the Members. Each of OSEG Inc.,
OSEG Partnership and the Members shall inform all third parties with which it
deals that it is not the agent of the City and cannot bind the City, except
as contemplated in the Option Agreement, and the City shall inform all third
parties with which it deals that it is not the agent of OSEG Inc., OSEG Partnership and/or the Members and cannot bind OSEG
Inc., OSEG Partnership and/or the Members.
7.3
Each of
OSEG Inc., OSEG Partnership and the Members acknowledges that although the City
is a party to this Agreement, the City is and shall remain an independent
planning authority with all requisite powers and discretion provided under
Applicable Laws including the Planning
Act (Ontario) and the Municipal Act,
2001 (Ontario) and nothing contained herein shall derogate from its
obligations to obtain all requisite Permits or the City’s discretion,
obligations and liabilities with respect thereto.
This Agreement
constitutes the entire agreement between the Parties pertaining to the subject
matter of this Agreement and supersedes all prior correspondence, agreements,
negotiations, discussions and understandings, if any, written or oral. Except as specifically set out in this
Agreement, there are no representations, warranties, conditions or other
agreements or acknowledgements, whether direct or collateral, express or
implied, written or oral, statutory or otherwise, that form part of or affect
this Agreement or which induced a Party to enter into this Agreement.
(a) delivered in person and, if applicable, left with a receptionist or other responsible employee of the relevant Party at the applicable address set forth below;
(b) sent by prepaid courier service or (except in the case of actual or apprehended disruption of postal service) mail at the applicable address set forth below; or
(c)
sent by electronic or facsimile transmission, with
confirmation of transmission by the transmitting equipment (a “Transmission”)
at the applicable email address or facsimile number set forth below;
(i)
in the
case of a notice to the City, addressed to it at:
City of Ottawa
110 Laurier Avenue West
Ottawa, Ontario K1P 1J1
Attention: Kent Kirkpatrick,
City
Manager
Facsimile
No.: 613.580.2449
E-mail: kent.kirkpatrick@ottawa.ca
(ii)
and in
the case of a notice to any other Party, addressed to it at such address as is
listed opposite its name in Schedule “A”
9.2
Any
notice sent in accordance with this Article 9 shall be deemed to have been
received:
(a) if delivered prior to or during normal business hours on a Business Day in the place where the notice is received, on the date of delivery;
(b) if sent by mail, on the third (3rd) Business Day after mailing in the place where the notice is received, or, in the case of disruption of postal service, on the third (3rd) Business Day after cessation of such disruption;
(c) if sent by electronic or facsimile during normal business hours on a Business Day in the place where the transmission is received, on the same day that it was received by Transmission, on production of a Transmission report from the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the relevant facsimile number of the recipient; or
(d) if sent in any other manner, on the date of actual receipt;
except that any notice delivered in person or sent
by Transmission after normal business hours on a Business Day or not on a
Business Day shall be deemed to have been received on the next succeeding
Business Day in the place where the notice is received.
9.3
A Party
may change its address for notice by giving notice to the other Parties.
This
Agreement may be supplemented, amended, restated or replaced only by a written
agreement signed by each Party.
11. Assignment
No
Party may assign or transfer, whether absolutely, by way of security or
otherwise, all or any part of its rights or obligations under this Agreement to
any Person without the prior written consent of the other Parties.
12. Enurement
This Agreement shall enure to the benefit
of and shall be binding on the Parties and their respective heirs, executors,
personal representatives, successors and permitted assigns, as applicable.
13. No Third Party Beneficiaries
This Agreement is solely for the benefit
of the Parties and no third parties shall accrue any benefit, claim or right of
any kind pursuant to, under, by or through this Agreement.
14. Severability
Each provision of this Agreement is
declared to constitute a separate and distinct covenant and to be severable
from all other such separate and distinct covenants. If any provision of this Agreement or its
application to a Party or any circumstance is restricted, prohibited or
unenforceable, that provision shall be ineffective only to the extent of that
restriction, prohibition or unenforceability without invalidating the remaining
provisions of this Agreement and, if applicable, without affecting its
application to the other Parties or circumstances.
15. Waiver of Rights
Except as expressly provided in this
Agreement, any waiver of, or consent to depart from, the requirements of any
provision of this Agreement shall be effective only if it is in writing and
signed by the Party giving it, and only in the specific instance and for the
specific purpose for which it has been given.
No failure on the part of a Party to exercise, and no delay in
exercising, any right under this Agreement shall operate as a waiver of such
right. No single or partial exercise of
any such right shall preclude any other or further exercise of such right or
the exercise of any other right.
16. Dispute
Resolution
16.1
Except
as otherwise provided in this Agreement, any Dispute between Parties will be
resolved as follows:
(a) such Parties shall make all reasonable efforts to promptly resolve amicably any Dispute, controversy, claim, demand, action, proceeding or liability by negotiations, which shall be initiated by either of them giving to the other written notice (in this Section, the “Dispute Notice”) containing details of the Dispute and the other shall provide its written reply thereto within ten (10) Business Days;
(b) if, for any reason, the Dispute has not been resolved as aforesaid within a further ten (10) Business Days after receipt of both the Dispute Notice and the reply thereto, then a Party involved in the Dispute may provide a written request to the other Parties that the Dispute be resolved by referral to arbitration between the Parties pursuant to the Arbitration Act. If such Parties proceed to arbitration, the arbitration shall be conducted by a single arbitrator, the place of arbitration shall be Ottawa, Ontario, and the language of the arbitration shall be English. If such Parties cannot agree upon the appointment of the single arbitrator within ten (10) Business Days of receipt of the request to arbitrate, a Party involved in the Dispute may apply to a Judge of the Ontario Superior Court of Justice in Ottawa, Ontario, to appoint same. A decision of the arbitrator shall be final and binding on the Parties involved in the Dispute and there shall be no appeal therefrom; and
(c) the time limits referred to in this Section 16 may be abridged or extended by mutual agreement of the Parties involved in the Dispute.
16.2
If
Parties have agreed, under this Article 16 to arbitrate their Dispute, except for any action
necessary to enforce the award of the arbitrator, or any actions initiated by
the insurer of the involved Parties, and subject to the provisions of Section 16.1, the provisions of this Article are a complete
defence to any suit, action or other proceeding instituted in any court or
before any administrative tribunal with respect to any Dispute arising under or
in connection with the Agreement.
16.3
The
Parties shall continue to fulfil their obligations in respect of this Agreement during the dispute resolution procedure
provided in this Article 16.
16.4
This
Section 16 shall survive any termination of this Agreement.
17. Time of Essence
Time is of the essence of this Agreement.
18. Jurisdiction
Subject to Section 16, each Party irrevocably and unconditionally attorns
to the exclusive jurisdiction of the courts of the province of Ontario.
This Agreement and any Dispute shall be
governed by, and interpreted and enforced in accordance with, the laws of the
province of Ontario and the laws of Canada applicable in that province,
excluding the choice of law rules of that province.
20. Counterparts
This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which taken together shall constitute one agreement. To evidence the fact that it has executed
this Agreement, a Party may send a copy of its executed counterpart to the
other Parties by Transmission and the signature transmitted by Transmission
shall be deemed to be its original signature for all purposes.
21. Independent Legal Advice
Each Party declares that it has executed this
Agreement voluntarily after having been given sufficient time to consider its
actions and to seek such independent legal or other advice as it deems
appropriate with respect to this matter and the terms of this document and that
it fully appreciates the nature, extent and consequences of this Agreement.
(signature page follows)
IN WITNESS WHEREOF the Parties have duly executed this Agreement as of
the date hereof.
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THE CITY OF
OTTAWA |
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I/We have authority to
bind the corporation. |
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Ottawa Sports and Entertainment Group Inc. |
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I/We have authority to
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LANSGREEN INVESTMENTS INC., in its own capacity
and in its capacity as a partner in Ottawa Sports and Entertainment Group |
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SHENKMAN LANSDOWNE LTD., in its own capacity and in its capacity as a partner
in Ottawa
Sports and Entertainment Group |
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Name: Roger
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Name: William
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Trinity Lansdowne Ltd., in its own capacity and in its capacity as a partner
in Ottawa
Sports and Entertainment Group |
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Keljay Ltd., in its own capacity and in its capacity as a partner
in Ottawa
Sports and Entertainment Group |
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Name: John Ruddy |
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Name: Jeff Hunt |
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In the case of a notice to OSEG Inc., OSEG Partnership or
a Member, addressed to it at:
c/o Ottawa Sports and
Entertainment Group
180 Kent Street, Suite 200
Ottawa, Ontario K1P 0B6
Attention: Bronwen Heins
Facsimile No.: 613.782.2240
E-mail: bronwenheins@oseg.ca
(please see attached)