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HomeMy WebLinkAboutFIN-09-157 - Agreement for the Accreditation of the Operating Authority of Municipal Drinking Water SystemsI I~TC~~R Financial Services REPORT TO: Councillor B. Vrbanovic, Chair, and Members of the Finance and Corporate Services Committee DATE OF MEETING: November 16, 2009 SUBMITTED BY: Dan Chapman PREPARED BY: Angela Mick, P.Eng, Utilities Water Engineer WARD(S) INVOLVED: All DATE OF REPORT: November 9, 2009 REPORT NO.: FIN-09-157 SUBJECT: AGREEMENT FOR THE ACCREDITATION OF THE OPERATING AUTHORITY OF MUNICIPAL DRINKING WATER SYSTEMS RECOMMENDATION: That the Mayor and Clerk be authorized to execute an Agreement with Her Majesty the Queen In Right of Canada, as represented by the Minister of Public Works and Government Services acting through the Canadian General Standards Board (CGSB) for the purpose of providing the City of Kitchener with an Accreditation to Operate the Municipal Drinking Water Systems BACKGROUND: The Drinking Water Quality Management Standard (DWQMS), under the Safe Drinking Water Act, 2002 and Regulation 188/07, requires the City of Kitchener to become licensed to operate and maintain Kitchener's Water Distribution System. One of the licensing requirements was the preparation of a Quality Management System (QMS) and Operational Plan. Council endorsed the Operational Plan on November 17, 2008 (FIN-08-133). Ongoing communication regarding the DWQMS will be provided annually to Council. CGSB was retained by the Ministry of Environment to complete audits of the Operational Plans on their behalf. After an external audit was completed by CGSB in summer of 2009, they recommended that Kitchener become an Accredited Operational Authority. Execution of the Agreement is required for Kitchener to become an Accredited Operating Authority. REPORT: A signed agreement with CGSB is required for Kitchener to become an Accredited Operating Authority. To remain in compliance with the Safe Drinking Water Act, 2002, Kitchener is required to be an Accredited Operating Authority. A copy of the Agreement is attached. FINANCIAL IMPLICATIONS: 2-1 There is no cost to the City to engage in the agreement, however the City must pay for audit related expenses. COMMUNICATIONS: Once the accreditation agreement between CGSB and of Kitchener has been signed, the CGSB will issue the accreditation certificate and add Kitchener to the list of accredited operating authorities on their website. ACKNOWLEDGED BY: Dan Chapman, General Manager of Financial Services & Treasurer 2- 2 THIS AGREEMENT made in hiplicate as of the 24~i' of September 2009 BETWEEN Her Majesty the Queen in right of Canada. as represented by the Minister of Public Works and Govenmlent Services acting tln~ough the Canadian General Standards Board (hereinafter referred to as "Canada") AND The Corporation of the Cit<~ of Kitchener. a corporation incorporated under the lays of the Province of Ontario. Canada, and having its head office in Kitchener, Ontario (hereinafter "the (?perating Authority°") AGREEMENT FOR THE ACCREDITATION OF THE OPERATING AUTHORITY OF MUNICIPAL DRINKING WATER SYSTEMS WHEREAS Canada, as represented by the Minister of Public Works and Govenunent Sei-~~ices. has made the Canadian General Standards Board (hereinafter "the CGSB") responsible for the administration of certain accreditation programs: AND WHEREAS the CGSB has further to its mandate established an accreditation program for the purpose of ascertaining whether a parh~ is capable of meeting the requn-ements under the Accreditation Program for Operating Authorities of Municipal Drinking Water Systems (hereinafter "the Accreditation Program'): AND WHEREAS the Operating Authoring wishes to participate in and be listed under the Accreditation Program with respect to those of its Drinking Water Systems that are listed in the attached Schedule `B": AND WHEREAS the Operating Authority has made an Application to Canada representing that its seiti~ices meet the requirements of Ontario's Drinking Water Quality Management Standard (hereinafter "the Standard") as yell as the Program Handbook for the Accreditation of Operating Authorities -Municipal Drinking Water Sy_ stems (hereinafter "the Handbook"): AND WHEREAS Canada is prepared to list the Operating Authorit~~ under the Accreditation Program upon the terms and conditions and for the consideration set out herein; NOW THEREFORE, in consideration of the premises and of the nmhull covenants and agreements hereinafter set forth. Canada and the Operating Authorit<~ (hereinafter collectively "the Parties") agree as follo~~--°s: 1. This non-exclusive Accreditation shall be for a tern of tluee (3) y°ears commencing the nth day of August 2009 and expiring on the nth day of August 2012. 2. The follo~ti°ing listed documents form part of and are incorporated into tlus Agreement as fully and effectively as if they were set forth at length in this Agreement a. These articles of Agreement: b. Schedule "A" -'`Operating Authority's Application for Accreditation": c. The Handbook d. Schedule 'B" - "Operating Authority's Driiilting Water Systems and Facilities". 1 2-3 In the event of anv discrepancies. inconsistencies or ambiguities in the wording of these documents, the wording of the document that first appears on the above list shall prevail. In the event that a document on the above list is internally inconsistent or ambiguous, the wording that first appears in the document shall prevail over anv subsequent wording in the document. Applicatiun Canada declares, and the Operating Authorit<~ acknowledges, that Canada's decision to enter into this Agreement is based in part upon the Operating Authorih ~s representations and undertakings that are set out in the Operating Authorit`~'s Application for Accreditation submitted by the Operating Authorit`~. Listing in the Accreditation Program d. During the teen of this Agreement and subject to the conditions set out herein. Canada shall list the Operating Authorit<~ as a participant in the Accreditation Program provided that the Operating Authorit`~ satisfies on an ongoing basis the terms, conditions and other requirements of the Agreement of the Accreditation Program as detailed in the Handbook. The Operating Authorit<~ agrees and covenants that it will comply with and perforn all its obligations in accordance with the terms. conditions, specifications, representations. undertakings and other requirements of this Agreement, the Standard and the Handbook. during the term of this Agreement and for all its drinking water systems and facilities listed at Schedule 'B", «-hich may be amended from time to time tluough mutual agreement of CGSB and the Operating Authorit`~, including taking responsibilih~ for ensuring that: a. the Operating Authorih- continues to respect the representations made in the Operating Authorit~~'s Application for Accreditation (Schedule '`A") throughout the term of this Agreement: and b. the Operating Authority reports to the CGSB, without any delay, any changes to its operations, facilities and procedures, or anv other changes relative to its representations made in the Operating Authorit<~ Application for Accreditation (Schedule "A"). 6. Canada also resei'~-es the right to change the Handbook at any time. If Canada amends the Handbook, the Operating Authority will be notified that a new revision of the Handbook has been released. and it will be the sole responsibility of the Operating Authorih to retrieve and implement the most current rep°ision of the Handbook. If required, the Operating Authorit`~ will be given reasonable time to implement associated changes to its operations, facilities and procedures that are needed to conform to these amendments. After this time. Canada may require that the Operating Authorit`~ confirm in writing that it conforms to the revised Handbook Failure to bring a listed facilin~ into conformance with the revised Handbool: within the time given for implementation shall be, at the option of Canada, either grounds for de-listing or a default under this Agreement. Similarly, the Province of Ontario may amend the Standard at any time. It is the sole responsibilit`~ of the Operating Authorifi to ensure that they monitor and conform to the most current recision of the Standard. If required, the Operating Authorit~~ will be given reasonable time to implement associated changes to its operations, facilities and procedures that are needed to conform to these amendments. After this time. Canada may require that the Operating Authority confirm in writing that it conforms to the revised Standard. Failure to bring a listed facilit<~ into conformance with the revised Standard within the time given for implementation shall be, at the option of Canada, either grounds for de-listing or a default under this Agreement. 2 2-4 Withdra~yal and/or Termination b~- the Oneratin~ Authorit~- 8. The Operating Authorit<~ may. at anv time, inform Canada in writing that it is withdrawing from the Accreditation Program. The Operating Authorit<~ shall no longer use the CGSB accreditation number. Upon the Operating Authorit<~'s formal withdra~yal from the Accreditation Program, Canada shall not be obligated to repay anv payment or portion of anv payment made be the Operating Authorit<~ that corresponds to a period of time extending beyond the withdrawal from the Accreditation Program. The Operating Authorit<~ may, at the option of the Operating Authorit`~, terminate this Agreement by giymg si~t`~ (60) days' written notice to Canada in the manner set forth and at the address listed at Article 28. Si~nifiamce of Accreditation The Operating Authorit`~ understands and agrees that Canada's execution of this Agreement and Canada's listing of the Operating Authority as a participant in the Accreditation Program means that the Operating Authorit<~ has demonstrated to the satisfaction of Canada that it is capable of conforming to the requirements of the Handbook and those of the Standard. The Operating Authorit<~ shall make no other implied or eypress representations as to the meairing of such a listing. The Operating Authorih~ understands and agrees that the listing of the Operating Authority under the Accreditation Program in no way_ relieves the Operating Authorih~ of the duh~ to uphold the la~~--°s and regulations applicable to the indushti~ and to maintain a continuing, systematic and diligent program and a qualit`~ management system to ensure that the Operating Authority meets or exceeds the requirements of the Handbook and the Standard. Agreement to use the CGSB Accreditation number 10. During the term of this Agreement and suUject to the terms and conditions set out hereii~ Canada hereby grants the Operating Authorit~~ the right to use the CGSB accreditation number in accordance with Section 10 of the Handbook, ``Use of the CGSB name and Accreditation number'. 11. Canada shall have the right to preview and approve the use of its name, the CGSB accreditation number or anv other representation of its Accreditation Program before publication, printing~or other use by the Operating Authorit`~. Tlus right includes the right to preview anv other claim or representation made by the Operating Authorit<~ in or on advertising, promotional materials or labels that have not been assessed and listed by Canada. 12. The Operating Authorit`~ acknowledges that the CGSB accreditation number is the e~clusiye properh~ of Canada and that all use of the CGSB accreditation number by the Operating Authority shall inure to the benefit of Canada. If Canada notifies the Operating Authorih~ that it objects to a use of the CGSB accreditation number bv_ the Operating Authoritti~. the Operating Authority will have to cease such use immediately. The Operating Authorit`~ agrees that it will do nothing inconsistent with Canada's o~enership of and title to the CGSB accreditation number. or with the rights pro~-ided to the Operating Authorit`~ under this Agreement regarding the CGSB accreditation number. Nothing in this Agreement shall giee the Operating Authorit<~ anv right, title or interest in the CGSB accreditation number other than the right to use the number in accordance with this Agreement. 13. The failure of the Operating Authorit`~ to conform to the teams, conditions and covenants contained in this Agreement shall entitle Canada. acting reasonably at its sole discretion, to terminate the Agreement The Operating Authority agrees that the breach of any term, condition or covenant contained in Section 10 of the Handbook. "Use of the CGSB name and Accreditation number', or Articles 10 to 13 of this Agreement, or anv use of the CGSB accreditation number ~yithout 2-5 Canada's prior consent, will cause irreparable injun~ to Canada. The Operating Authorit`~ therefore agrees. in the event of anv such breach, and notwithstanding an~~ provision to the cont~aiv in this Agreement, that it will not oppose Canada's request to a court of competent jurisdiction for injunctive relief prey°enting the Operating Authority's continued use of the CGSB accreditation number. 14. The Operating Authorit<~ shall immediately notify Canada of anv apparent infringement of or challenge or claim by an~~ person relating to the CUSB accreditation number. Canada shall have the exclusive right to control as it sees fit, in its sole discretion, anv settlement, litigation or other proceeding relating to such infringement, challenge or claim or other~~-ise relating to the CUSB accreditation number. Accreditation Program Fees 1 ~. Each rear during the teen of this Agreement, in consideration of the non-e~clusiye accreditation granted by Canada hereby. and in consideration of Canada's activities relating to its management of the Accreditation Frogram and its listing of the Operating Authorit<~ as a participant, the Operating Authority shall pay to Canada fees and charges as detailed at Section 9, "Costing", of the Handbook. 16. Payment of the said fees and charges shall be made in the manner set forth at Section 9, "Costing", of the Handbook. Interest on Late Payments 17. The Operating Authorit`~ shall be liable to pay to Canada simple interest at the Bank Rate, plus tln~ee percent (3.00%). on any overdue amount from the date such amount became overdue until the date prior to the date of pa~~ment, inclusively. 18. For the purposes of Article 17 a. an amount is "due and parable' when it is due and payable by the Operating Authorih• to Canada pursuant to the terms of this Agreement: b. an amount is "overdue" when it is unpaid on the first day following the day that it is due and pa~~able: c. "date of payment" means the date on which the payment of the fees and charges detailed in Section 9, "Costing", of the Handbool: is received by Canada: and d. `Bann Rate~~ means the prevailing discount rate of interest set b~-° the Bank of Canada at the opening of business on the date the amount of the fees and charges detailed in Section 9. "Costing", of the Handbook become overdue. Termination for Default 19. Canada may terminate this Agreement upon giving written notice to the Operating Authority in the event that a. the Operating Authority fails, refiases or neglects. or is unable to comply ~yith anv of the provisions of this Agreement: b. the Operating Authorifi fails to comply with the provisions of its Application for Accreditation (Schedule '`A"): c. the Operating Authorih~ fails to comply with the requil-ements of the Standard or the Handbook: 4 2-6 d. the Operating Authority- fails to respect any of the time periods stipulated. referred to or set in accordance with this Agreement: or e. anv amount payable by the Operating Authority to Canada under the terms of this Agreement remains unpaid for more than sizh~ (60) days. 20. This Agreement shall terminate without notice. and all rights accorded to the Operating Authorit`~ under tl>is Agreement shall be terminated, if the Operating Authority a. applies for or consents to the appointment of a receiver, receiver manager. trustee or liquidator for itself or anv of its propert`~; b. is unable or admits its inabilit`~ to pay its debts as they become due: c. makes a general assigmnent for the benefit of creditors: d. is adjudicated banlalipt or insolvent: or e. files a voluntary petition in banlillaptcy or a petition seeking reorganization or arrangement with creditors: takes advantage of any insoh enev law: admits to the material allegations of a petition filed against it in any banlal~ptcy. reorganization or insoh~ency proceeding: initiates a corporate action to effect anv of the foregoing: or if an order is made or a resolution passed for the winding up of the Operating Authorit<~. 21. The Operating Authorih shall be liable to Canada for all loss and damage that may be suffered by Canada bv_ reason of anv_ default on the part of the Operating Authority. 22. Not~yithstanding anything herein to the cont-ai~ , upon termination of this Agreement for anv reason of default by the Operating Authorih~- all fees and charges that are owing pursuaant to the teens of this Agreement shall immediately become due and payable, and in no event shall Canada become obligated to repay any payment made or any portion of a payment that has been made and that corresponds to a period of time that eltends beyond the date of termination by reason of default. Termination by Canada 23. Canada may, at the option of Canada, and in addition to the provisions of Article 20 herein, terminate this Agreement by giving sixty- (60) days' written notice to the Operating Authorih~ in the manner set forth and at the address listed at Article 28. 24. In the event Canada terminates this Agreement for anv reason other than the Operating Authorit`~'s default in respecting any of its obligations hereunder, the annual Program Management charges will be prorated according to the number of days of the then current year during which this Agreement is i1r effect, and the remaining portion for that year ~ti°ill be reimbursed to the Operating Authority. In the event, however. that -the Operating Authority terminates this Agreement pursuant to Article R hereof. then the Operating Authorit<~ shall not be entitled to anv reimbursement. Indemnity- 25. Without limiting Canada's remedies and recourses at law, the Operating Authority covenants and agrees to indenmit~~ and save harnless Canada, the Minister of Public Works and Govermnent Sei-~°ices Canada and their sei~-ants and agents from and against 2-7 a. ane damages, costs or expenses or anv claim, action. suit or other proceeding that they or anv of them may at anv time incur or suffer as a result of or arising out of anv injuiv to persons (including injuries resulting in death) or loss of or damage to propert<~ of others that may be or be alleged to be caused by or suffered as a result of i. the Operating Authorit<~'s operations. facilities and procedures: ii. the provision of a sen~ice by or for the Operating Authorit`~ and in comlection with which the CGSB accreditation number is used. whether such use is authorized or unauthorized: or iii. anv other act or omission of the Operating Authorih b. anv and all liability-. loss, cost. damages, legal fees and expenses of whatever kind or nahue that Canada may sustain or incur by reason or in consequence of any act or omission of the Operating Authority in respect of the right granted herein to use the CGSB accreditation number or display the certificate issued by Canada, or the right to use or the use of the CUSB accreditation number in connection with an~~ product and/or facilities, whether authorized or unauthorized: and c. anv reasonable costs that may be sustained or incurred by Canada in malting anv ins°estigation on account of anv such liabilit<~, loss, cost, damage, legal fees or expenses in defending or prosecuting any action, suit or other proceeding that may be brought in connection therewith or in obtaining a release from liabilit~~ in connection therewith. or in enforcing any of the obligations herein contained. Canada shall give notice to the Operating Authorit`~ of anv claim. action, suit or proceeding referred to above. To the extent requested by the Attorney General of Canada, the Operating Authorit<~ shall, at its own expense. participate in or conduct the defense of anv_ such claim, action, suit or proceeding and anv negotiations for settlement of the same. but the Operating Authorit<~ shall not be liable to ilidemnifv Canada for payment of anv settlement unless it has consented to the settlement. Assi~mnent 26. This Agreement is personal to the Operating Authority and shall not be assigned or otherwise encumbered by the Operating Authorit<~ or by operation of law. in whole or in part Any purported assignment or encumbrance of this Agreement by the Operating Authority shall be null and void. Time is of the Essence 27. Time shall be of the essence of this Agreement. Notice 28. a. Any notice shall be in writing and may be delivered by hand or sent by e-mail. by courier. by registered mail or by facsimile or other electronic means that proeides a paper record of the test of the notice, and addressed to the Parh~ for whom it is intended at the address set out below. Anv notice shall be deemed to be effective on the day it is received at that address. 6 2-8 For the Operating Authority, to: Utilities Water Engineer The Corporation of the Cit<~ of Kitchener Cite Hall, PO Box 1118 200 King Street West Kitchener, Ontario (Canada) N2G 4G7 For Canada, to: Manager, Conformit<-° Assessment Diaision Canadian General Standards Board 11 Laurier Street, Place du Portage Phase III, 6B 1 Gatineau, Quebec (Canada) K1A 1 G6 b. Either parn~ may, by ~yritten notice to the other. change its address for purposes of this article. In the event that any notice sent to the address set out in this article, or in the latest address change notice received by the parfi sending the notice, shall be returned undelivered by reason of the fact that the part`s to whom it ~~--°as addressed has moved or does not occupy the designated address, such notice shall nevertheless be deemed to have been received by such part`s on the date it was sent. Miscellaneous 29. This Agreement shall be governed by and construed in accordance ~~ith the laws in effect in the Province of Ontario. 30. No member of the House of Commons shall be admitted to ane share or part of this Agreement or to anv benefit to arise therefrom. 31. a. The Operating Authorit<~ certifies that it has not, directly or indirectly, paid or agreed to pay and agrees that it will not, directly or indirectly, pay a contingency fee for the solicitation, negotiation or obtaining of the Agreement to any person other than an employee of the Operating Authorifi_ acting in the normal course of the employee's duties. In this article, "contingence fee"' means any payment or other compensation that depends or is calculated on the basis of a degree of success in soliciting, negotiating or obtainng the Agreement, and "person" includes any individual who is required to file a return with the Commissioner of Lobbying pursuant to section ~ of the Lobbi~ing_-1ct, 198, a 44 (4th Supp.): "employee" means a person with ~yhom the Operating Authorit`~ has an employer-employee relationship: and '`person" means an individual or a giaup of individuals, a corporation, a partierslup, an organization. an association and, without restricting the generalit<~ of the foregoing. any individual ~yho is required to file a return ~yith the Commissioner of Lobbying pursuant to section ~ of the Lobbying _4ct, 198, c. 44 (4th Supp.) as the same may be amended from time to time. b. All accounts and records of the Operating Authoring pertaining to payment of fees or other compensation for the solicitation, negotiation or obtaining of this Agreement shall be open to audit, inspection and examination by the 7 2-9 authorized representatives of the CGSB. ~yho may make copies and take extracts therefrom. The Operating Authorit~~ shall ~ provide all facilities for such audits and inspections and shall furnish all such information as the representati~°es of the CGSB may from tune to time require ~yith respect to such accounts and records. a If the Operating Authority certifies falsely under this article or is in default of the obligations contained herein, the ~ CGSB may either terminate this Agreement for default in accordance with the termination for default provisions of the Agreement or recover from the Operating Authorit`~ the full amount of the contingence fee. 32. a. Persons in Canada, and Canadians outside of Canada, are bound by economic sanctions imposed by Canada. Details on existing sanctions can be found at ~~w~y.dfait-maeci.ge.ca/trade/sanctions-en.asp. b. The Operating Authorih undertakes and agrees that it will, in the performance of tl>is Agreement, comple with any such regulations that are in force on the effective date of the Agreement. a The Operating Authorit<~ must comply ~yith changes to such regulations imposed during the period of the Agreement. The Operating Authorit~~ must immediately advise Canada if it is unable to abide by the terms ~of the Agreement~or the other documents listed at Article 2 of this Agreement as a result of the imposition of economic sanctions against a counhti~ or person or the addition of a good or sei~~ice to the list of sanctioned goods or sen~ices. If the Parties camrot agree on a ~~--°orkaround plan, the Agreement will be terminated. 33. This Agreement represents the entire agreement between Canada and the Operating Authorit`~ relating to the subject matter of the Agreement and supersedes all previous negotiations. communications and other agreements. whether ~tiritten or oral, relating to it unless they are incorporated by reference in the Agreement There are no terms, covenants, representations, statements or conditions binding on the Parties other than those contained in the Agreement. 34. This Agreement shall inure to the benefit of, and shall be binding upon, the successors and permitted assignees of Canada and of the Operating Authorit<~. 35. All of the Operating Authorit`~'s representations and warranties set out in this Agreement as well as the provisions concerning indemnity against tlurd party claims shall sui-~Tiee the expilti~ of the Agreement or the termination of the Agreement for default, for convenience or by mutual consent, as shall any other prop°ision of the Agreement that, by the nahue of the rights or obligations set out therein, might reasonably be expected to be intended to so sui-~riee. 36. No amendment or modification to this Agreement shall be valid and binding unless it is incorporated into the Agreement by ~yritten amendment executed bv_ the authorized representatives of both Canada and the Operating AuthoritL-. 37. No waiver shall be valid. binding or affect the rights of the Parties unless their respective authorized representatives make it in ~~riting. The «°aiver by a Parh~ of a breach of any teen or condition of the Agreement shall not present the enforcement of that term or condition by that Party in the case of a subsequent breach. and shall not be deemed or constitute a waiver of any subsequent breach. Eveiti- right, remed~~. po~yer and discretion vested in or acquired by Canada under this Agreement or be law shall be cumulative and non-exclusive. 8 2-10 IN WITNESS WHEREOF this Agreement has been duly esecuted on behalf of HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by the Minister of Publics Work and Go~-ernment Seiti-ices acting through the Canadian General Standards Board, and has been duly esecuted on behalf of THE CORPORATION OF THE CITY OF KITCHENER, the Operating Authority-, by- its duly° authorized officer effecti~-e the day- and rear first abo~-e ~i ritten. MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES (as represented by' and acting through the Canadian General Standards Board) Name/title: Carole Beauchamp / CGSB Manager, Confonnin~ Assessment Dieision OPERATING AUTHORITY Name/title: Witness Name/title: J 2 - it SCHEDULE"A" APPLICATION AND UNDERTAKING A5 per the signed application dated the 8th day of Januan~ 2009 10 2-12 SCHEDULE"B" DRINKING WATER SYSTEMS AND FACILITIES Drinking Water S~-stem Name(s) /Address(es): City of Kitchener Dririlcin~ Water Distribution S~~stein Utilities Operation Centre 83 Elmsdale Ih~iee. Kitchener ON 11 2-13