GREATER TORONTO AREA FARE SYSTEM OPERATING AGREEMENT

TABLE OF CONTENTS ARTICLE 1 ............................................................................................................................................................ 8 DEFINITIONS AND INTERPRETATION .............................................................................................................. 8 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10 Definitions .................................................................................................................................. 8 Herein, etc................................................................................................................................. 13 Currency ................................................................................................................................... 14 Statutes..................................................................................................................................... 14 Number ..................................................................................................................................... 14 Divisions, Headings and Table of Contents..........................................................................14 Governing Law......................................................................................................................... 14 Severability............................................................................................................................... 14 Accounting and Auditing Standards .....................................................................................14 Entire Agreement..................................................................................................................... 15

ARTICLE 2 .......................................................................................................................................................... 16 TERM................................................................................................................................................................... 16 2.1 2.2 Term .......................................................................................................................................... 16 Renewal .................................................................................................................................... 16

ARTICLE 3 .......................................................................................................................................................... 16 CHANGES IN MINISTRYS PARTICIPATION & SUCCESSOR(S) ...................................................................16 3.1 3.2 3.3 Appointment of Agent, etc......................................................................................................16 Appointment of Successor .....................................................................................................17 Successor(s) Termination....................................................................................................... 17

ARTICLE 4 .......................................................................................................................................................... 18 SERVICE PROVIDER PRECONDITIONS .......................................................................................................... 18 4.1 4.2 4.3 4.4 4.5 4.6 Representations and Warranties of Service Provider ......................................................... 18 Addition of Service Providers to this Agreement ................................................................19 Co-operation with Agent ......................................................................................................... 19 Contract between Service Providers and Vendor ................................................................ 19 Operation of the GTA Fare System ........................................................................................20 Commitments and Payment of Moneys ................................................................................20

ARTICLE 5 .......................................................................................................................................................... 20 SERVICE PROVIDERS....................................................................................................................................... 20 5.1 5.2 5.3 5.4 5.5 General Responsibilities......................................................................................................... 20 Responsibilities To the Vendor ..............................................................................................21 Responsibilities to the Ministry .............................................................................................22 Responsibilities to Customers ...............................................................................................22 Responsibilities to Other Service Providers.........................................................................22

ARTICLE 6 .......................................................................................................................................................... 23 THE MINISTRY ................................................................................................................................................... 23 6.1 6.2 6.3 6.4 6.5 General Responsibilities......................................................................................................... 23 Financial Responsibilities....................................................................................................... 24 Responsibility to the Vendor ..................................................................................................24 Responsibility to the Service Providers................................................................................24 Responsibility to the Transit Customer ................................................................................25

ARTICLE 7 .......................................................................................................................................................... 25 RELATIONSHIP BETWEEN THE PARTIES ...................................................................................................... 25 7.1 7.2 Residual Decisions.................................................................................................................. 25 No Partnership, Joint Venture or Corporation......................................................................26

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7.3 7.4 8.1 8.2 8.3 8.4 8.5 8.6 8.7 8.8

Members of Council, Officers, Agents, etc........................................................................26 No Fiduciary Duties ................................................................................................................. 26 Establishment of Steering Committee...................................................................................26 Appointment of Steering Committee Members ....................................................................26 Chair of Steering Committee ..................................................................................................27 Vice Chair ................................................................................................................................. 27 Meetings ................................................................................................................................... 27 Quorum ..................................................................................................................................... 28 Voting........................................................................................................................................ 28 Policy Decisions ...................................................................................................................... 28

ARTICLE 8 STEERING COMMITTEE ............................................................................................................... 26

ARTICLE 9 .......................................................................................................................................................... 29 EXECUTIVE COMMITTEE.................................................................................................................................. 29 9.1 9.2 9.3 9.4 9.5 9.6 9.7 9.8 Establishment of Executive Committee ................................................................................29 Appointment of Executive Committee Members..................................................................29 Chair of Executive Committee................................................................................................30 Vice Chair ................................................................................................................................. 30 Meetings ................................................................................................................................... 31 Quorum ..................................................................................................................................... 31 Voting........................................................................................................................................ 31 Executive Decisions ................................................................................................................ 31

ARTICLE 10 ........................................................................................................................................................ 33 VENDOR.............................................................................................................................................................. 33 10.1 10.2 10.3 10.4 Ministrys Contract with Vendor ............................................................................................33 Disputes with Vendor .............................................................................................................. 34 Service Providers and Agents Responsibilities in Dispute with Vendor......................... 34 Dispute Costs........................................................................................................................... 34

ARTICLE 11 ........................................................................................................................................................ 34 DATA RIGHTS .................................................................................................................................................... 34 ARTICLE 12 ........................................................................................................................................................ 34 CONFLICT OF INTEREST.................................................................................................................................. 34 12.1 Conflict of Interest ................................................................................................................... 34 ARTICLE 13 ........................................................................................................................................................ 35 FUNDING............................................................................................................................................................. 35 13.1 13.2 13.3 13.4 13.5 Ministry Funding Contribution ...............................................................................................35 Service Provider Funding Contribution ................................................................................35 Funding Responsibilities for GTAFS Enhancements .......................................................... 36 Default in Payment by Service Provider................................................................................36 Insufficient Funds provided by the Legislature or Municipal Council ............................... 36

ARTICLE 14 ........................................................................................................................................................ 37 ASSETS............................................................................................................................................................... 37 14.1 14.2 14.3 Intellectual Property Rights .................................................................................................... 37 Service Provider Assets.......................................................................................................... 37 Ministry Assets ........................................................................................................................ 37

ARTICLE 15 ........................................................................................................................................................ 38 COMMUNICATION PLAN................................................................................................................................... 38 15.1 Communication Plan ............................................................................................................... 38

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ARTICLE 16 ........................................................................................................................................................ 38 CONFIDENTIAL INFORMATION........................................................................................................................ 38 16.1 16.2 16.3 16.4 16.5 Confidential Information ......................................................................................................... 38 Disclosure of Confidential Information to Vendor ............................................................... 39 Injunctive and Other Relief ..................................................................................................... 39 Notice and Protective Order ...................................................................................................39 Partys Advisors, Agents, Personnel and Contractors........................................................39

ARTICLE 17 ........................................................................................................................................................ 40 RECORDS AND AUDITS.................................................................................................................................... 40 17.1 17.2 17.3 17.4 Annual Audit............................................................................................................................. 40 Maintenance of Records by Vendor ......................................................................................40 Period for Keeping Records ...................................................................................................40 Spot Audits............................................................................................................................... 41

ARTICLE 18 ........................................................................................................................................................ 41 INTENTIONALLY BLANK .................................................................................................................................. 41 ARTICLE 19 ........................................................................................................................................................ 42 DISPUTE RESOLUTION..................................................................................................................................... 42 19.1 19.2 19.3 19.4 19.5 19.6 Legal Remedies for Disputes .................................................................................................42 Three-tiered Dispute Resolution ............................................................................................42 High-Level Negotiation............................................................................................................ 42 Mediation .................................................................................................................................. 42 Arbitration................................................................................................................................. 43 Performance to Continue........................................................................................................43

ARTICLE 20 ........................................................................................................................................................ 43 DEFAULT, ENFORCEMENT AND TERMINATION ...........................................................................................43 20.1 20.2 20.3 20.4 20.5 20.6 Event of Default ....................................................................................................................... 43 Ministry Remedies for Event of Default by Service Provider.............................................. 44 Termination for Event of Default by Ministry........................................................................45 Termination without cause by the Ministry...........................................................................46 Termination without cause by a Service Provider ...............................................................46 Obligations Survive ................................................................................................................. 47

ARTICLE 21 ........................................................................................................................................................ 47 LIABILITY............................................................................................................................................................ 47 21.1 Liability ..................................................................................................................................... 47 ARTICLE 22 ........................................................................................................................................................ 48 NOTICE ............................................................................................................................................................... 48 22.1 22.2 Address for Notices................................................................................................................. 48 Effective Date ........................................................................................................................... 48

ARTICLE 23 ........................................................................................................................................................ 49 GENERAL ........................................................................................................................................................... 49 23.1 23.2 23.3 23.4 23.5 23.6 23.7 23.8 No Waiver ................................................................................................................................. 49 Force Majeure .......................................................................................................................... 49 Remedies Cumulative ............................................................................................................. 50 Survival ..................................................................................................................................... 50 Amendment .............................................................................................................................. 50 No Assignment ........................................................................................................................ 50 Further Action .......................................................................................................................... 51 Enurement ................................................................................................................................ 51

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23.9 Time of the Essence ................................................................................................................ 51 23.10 Counterparts ............................................................................................................................ 51 23.11 Gas Tax ..................................................................................................................................... 51 SCHEDULE A DESCRIPTION OF GTA FARE SYSTEM AND RELATED COMPONENTS FOR THE OPERATING AGREEMENT ............................................................................................................................... 55 SCHEDULE B OPERATING COST COMPONENTS AND FUNDING RESPONSIBILITIES ........................ 57 SCHEDULE "C" SERVICE PROVIDER INFORMATION SHEET......................................................................58 SCHEDULE "D" SAMPLE COUNCIL/BOARD/COMMISSION BY-LAW/RESOLUTION ................................. 60 SCHEDULE E CONFIDENTIALITY REQUIREMENTS .................................................................................61 SCHEDULE F DATA RIGHTS ........................................................................................................................ 63 SCHEDULE G COMMUNICATION REQUIREMENTS...................................................................................65 ATTACHMENT -1A TO SCHEDULE G - ONTARIO VISUAL IDENTITY GUIDELINES ............................ 69 SCHEDULE H MEDIATION............................................................................................................................. 70 SCHEDULE I ARBITRATION.......................................................................................................................... 74

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GTA FARE SYSTEM OPERATING AGREEMENT THIS AGREEMENT made as of the _____ day of ____________, 2006. B E T W E E N: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, represented by the Minister of Transportation for the Province of Ontario (hereinafter referred to as the Ministry) - AND GREATER TORONTO TRANSIT AUTHORITY, represented by the Managing Director and Chief Executive Officer, and Secretary for GO Transit (hereinafter referred to as GO Transit) - AND THE HAMILTON STREET RAILWAY COMPANY, represented by the Mayor and Clerk (hereinafter referred to as HSR) - AND THE REGIONAL MUNICIPALITY OF YORK, represented by the Regional Chair and the Regional Clerk (hereinafter referred to as York Region) THE CORPORATION OF THE CITY OF MISSISSAUGA, represented by the Mayor and Clerk (hereinafter referred to as Mississauga) - AND THE CORPORATION OF THE CITY OF BURLINGTON, represented by the Mayor and Clerk (hereinafter referred to as Burlington) - AND -

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THE CORPORATION OF THE CITY OF BRAMPTON, represented by the Mayor and Clerk (hereinafter referred to as Brampton) - AND THE CORPORATION OF THE TOWN OF OAKVILLE, represented by the Mayor and Clerk (hereinafter referred to as Oakville) - AND THE REGIONAL MUNICIPALITY OF DURHAM represented by the Regional Chair and Clerk (hereinafter referred to as Durham)

WHEREAS it is in the public interest to encourage the use of public transit systems within and across the GTA (Greater Toronto Area or GTA has the meaning given to it in Article 1 (Definitions)); WHEREAS the Parties (Parties has the meaning given to it in Article 1 (Definitions)) have entered into the Procurement Governance Agreement for a GTA Fare System (GTA Fare System has the meaning given to it in Article 1 (Definitions)) among the various transit systems in the GTA to encourage transit travel, reducing congestion and associated environmental impacts; WHEREAS the Parties desire to set forth in this Agreement a longer term governance structure/context that establishes the mechanisms for the Parties to work together at various levels; WHEREAS the Parties need to enter into an agreement to address operating requirements prior to the Ministry, acting on its own behalf and as Agent, entering into the Contract with the Vendor; WHEREAS this Agreement sets forth the roles and responsibilities of the Parties; WHEREAS the Parties desire to reaffirm their commitment to work together fairly and responsibly; AND WHEREAS the Parties recognize each other as equal participants to this Agreement and wish to proceed with the GTA Fare System on this basis;

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NOW THEREFORE in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the Parties covenant and agree as follows:

ARTICLE 1 DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Agreement, Agent means the Ministry, acting as agent for the Service Providers, or any Successor (Successor has the meaning given to it in this Section 1.1 (Definitions)) agent(s) appointed under Section 3.2 (Successor(s)); Agreement means this agreement, including its Schedules (Schedules has the meaning given to it in this Section 1.1 (Definitions)) and Attachments (Attachments has the meaning given to it in this Section 1.1 (Definitions)) to its Schedules, as may be amended from time to time; Alternate Executive Committee Member means an alternate member to an Executive Committee Member (Executive Committee Member has the meaning given to it in this Section 1.1 (Definitions)) designated by a Party, as set out in Section 9.2 (Appointment of Executive Committee Members); Alternate Steering Committee Member means an alternate member to a Steering Committee Member (Steering Committee Member has the meaning given to it in this Section 1.1 (Definitions)) designated by a Party as set out in Section 8.2 (Appointment of Steering Committee Members); Arbitration Act, 1991 means the Arbitration Act, 1991, S.O. 1991, c. 17; Attachments means the attachments listed in Section 1.10 (Entire agreement) and attached to some of the Schedules to this Agreement; Broader Public Sector means public bodies in the Province of Ontario, other than agencies, boards, commissions and Crown corporations, receiving funding from the Crown or a municipality, or both or as determined by the Ministry, acting reasonably, at any time and from time to time;

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Budget means the budget recommended by the Steering Committee under Section 8.8 (Policy Decisions), and approved by the Executive Committee under Section 9.8 (Executive Decisions); Business Day means any day which is not a Saturday or Sunday or a day observed as a holiday under the laws of the Province of Ontario or the federal laws applicable to the Province of Ontario, or a day observed as a holiday for the Government of Ontario; Central System means the central system described in Schedule A (Description of GTA Fare System and related components) and Schedule B (Cost components and funding responsibilities); Communication Plan means the communication plan developed by the Ministry and approved by the Executive Committee; Communication Requirements means the communication requirements, as set out in Schedule G (Communication requirements), that must be included in the Communication Plan; Confidential Information means (i) any cost estimate(s) showing the unit cost(s) for a component or components of the GTA Fare System or sums of cost estimates that can reasonably be manipulated to arrive at the unit cost(s) for a component or components of the GTA Fare System; (ii) any information from vendors or other third parties in the possession of the Ministry relating to the GTA Fare System including, without limitation, pricing, whether provided in response to a Project solicitation document or not; (iii) any personal information as contemplated in the Freedom of Information and Protection of Privacy Act (Ontario) and the Municipal Freedom of Information and Protection of Privacy Act; (iv) any other information specifically designated in writing by a Party as being of a confidential nature; and/or (v) any improvements, modifications and enhancements of, and information and things derived from or utilizing, any Confidential Information referred to in clause (i), (iii), (iv), or (v) above; Contract means the contract or contracts to be entered into between the Ministry, acting on its own behalf and as Agent, and the Vendor to deliver the GTA Fare System, or any part thereof and includes the Master Supply and Services Agreement (MSSA), related schedules, modules and appendices, the GTAFS Technical Specifications, the Request for Proposal (RFP) and Vendor proposal; Contractor means, in the case of each Party (Party has the meaning given to it in this Section 1.1 (Definitions)), any contractor, subcontractor, or consultant of that Party; Dispute means a dispute as described in Section 19.1 (Legal remedies for disputes); Dispute Notice means a dispute notice as described in Section 19.2 (Three-tiered dispute resolution);

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Effective Date means the date this Agreement is made as set out on the first page of this Agreement; Eligible Service Provider means a municipality, as defined under the Municipal Act, 2001, or a transit authority, including GO Transit or other persons or classes of persons as may be authorized under the Municipal Act, 2001, with which a municipality is permitted to enter into an agreement for the Operation of the GTAFS as provided in this Agreement; Enhancement means the addition of a service or function by a Party or Parties after system acceptance of the GTAFS by that Party or those Parties; Event of Default means an event of default as described in Section 20.1 (Event of default); Executive Committee Member means a member designated by a Party as set out in Section 9.2 (Appointment of Executive Committee Members); Executive Decisions means an Executive Committee decision as contemplated in Section 9.8 (Executive Decisions); Financial Administration Act or FAA means the Financial Administration Act, R.S.O. 1990, c. F.12; FIPPA means the Freedom of Information and Protection of Privacy Act, R.S.O 1990, c. F. 31; French Language Services Act means the French Language Services Act, R.S.O. 1990, c. F.32; Gas Tax means funds provided by the Ministry strictly toward eligible expenditures specifically for the provision of public transportation services; GO Transit Act, 2001 means the GO Transit Act, 2001, S.O. 2001, c. 23, Sched. A; GO Transit System means the GO Transit system described in Schedule A (Description of GTA Fare System and related components); Governing Documentation means this Agreement, the Contract, the Procurement Governance Agreement and the Technical Specifications; Greater Toronto Area or GTA means the geographic area encompassing the Cities of Toronto and Hamilton, respectively, and the Regional Municipalities of Durham, Halton, Peel and York, respectively;

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Greater Toronto Transit Authority or GO Transit means the Greater Toronto Transit Authority, as continued pursuant to the GO Transit Act, 2001; GTA Fare System or GTAFS means the goods and services, including the Central System, GO Transit System, and Municipal Systems which Operation is procured by the Ministry, acting on its own behalf and as Agent, as described in Schedule A (Description of GTA Fare System and related components), for use by the Parties to this Agreement; GTAFS Transit Application means the Transit Application as contained in Section 2; Part 9 Business Rules of GTA Technical Specifications; November 15, 2005; Intellectual Property Rights means any right in respect of any patent, copyright, trade-mark, trade name, trade secret and Moral Rights (Moral Rights has the meaning given to it in this Section 1.1 (Definitions)) of any person relating to the GTA Fare System; Launch 3 Completion means acceptance of the GTAFS for Brampton, Hamilton Durham by the Ministry on behalf of the Service Providers to the Vendor and full rollout of GO Transit System; Ministry means Her Majesty the Queen in Right of the Province of Ontario, as represented by the Minister of Transportation for the Province of Ontario; Moral Rights has the same meaning as in the Copyright Act, R.S.C. 1985, c. C-42, and includes comparable rights in applicable jurisdictions; Municipality or Municipalities means a municipality or municipalities, as the case may be, that is a Party or are Parties to this Agreement either by having signed this Agreement or a counterpart to this Agreement. Despite the above and except in Section 23.11 (b) (Gas Tax), Municipality or Municipalities include the HSR; Municipal Act, 2001 means the Municipal Act, 2001, S.O. 2001, c. 25; MFIPPA means Municipal Freedom of Information and Protection of Privacy Act R.S.O. 1990, c. M.56; Municipal Systems means the municipal systems described in Schedule A (Description of GTA Fare System and related components) and procured within the Procurement Governance Agreement. For greater clarity, Municipal System includes the HSR system; Operating Costs means the operating costs described in Schedule B (Operating Cost Components and funding responsibilities);

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Operating Agreement Executive Committee or Executive Committee means the committee established under Article 9 (Executive Committee); Operating Agreement Steering Committee or Steering Committee means the committee established under Article 8 (Steering Committee); Operation means the operation of the GTA Fare System in accordance with this Agreement, including the operation of related hardware, software, integration services, maintenance, and all other goods and services that may be used, whether by lease, licence, purchase or otherwise as part of the operation; Part 9 Business Rules means the approved set of rules and policies that govern the operation of the GTA Fare System as contained in the Technical Specification version 4.1, issued November 14, 2005 and as may be updated by Executive Committee; Party means any one of the Ministry, in its personal capacity, the Agent and each Service Provider, and Parties means more than one Party; Personnel means collectively, in the case of each Party, individuals who provide services to such Party or any of its Contractors in connection with this Agreement, whether as employees or independent contractors; Policy Decision means a Steering Committee decision as contemplated in Section 8.8 (Policy Decisions); Procurement Governance Agreement means the agreement made as of June 9, 2005 that specifies the roles and responsibilities of the Parties upon which the procurement is to be carried out and appoints the Ministry as Agent for the Service Providers; Project means the GTA Fare System Project; "Project Blueprint" means ascribed thereto in Sections 3.1 and 4.1 of the Master Supply and Services Agreement; Project Director means the project director appointed under Paragraph 9.8(c)(i) (Executive Decisions); Project Office means the office located at the GTA Fare System Project Office, c/o GO Transit, Suite 600, 20 Bay Street, Toronto, M5J 2W3, or any other office supplied by the Agent; Province means the Crown in Right of Ontario and any or all departments, ministries, agencies, boards, commissions, corporations or other entities thereof;

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Residual Decision means a decision as contemplated in Section 7.1 (Residual Decisions); Schedules means the schedules to this Agreement listed in Section 1.10 (Entire agreement) and attached to this Agreement; Service Level Agreement or SLA means the agreement developed by the parties during Project Blueprint stage that will bind the parties to particular obligations and rights; Service Provider or Service Providers means a Municipality or Municipalities, as the case may be, or the HSR, or GO Transit, or any combination of them; Steering Committee Member means a member designated by a Party as set out in Section 8.2 (Appointment of Steering Committee Members); Successor means: a) any ministry, agency, board, commission or Crown corporation of the government of Ontario; or b) any entity of the Broader Public Sector; Surplus Funds means those funds held in the Central System that are in excess of funds from deposits from fare cards less funds needed for day-to-day settlement and includes funds that are from inactive fare cards; Technical Specifications means the GTA Fare System Technical Specifications, Parts 1-12, attached as Appendix G to the Request for Proposal for the GTA Fare System issued Oct 7, 2005; Term means the term as described in Article 2 (Term); Third Party Agency means an individual, partnership or corporation who has entered into a contract to provide a location or locations where fare cards can be sold or value loaded onto the fare card; Vendor means the vendor or vendors with which the Ministry, acting on its own behalf and as Agent, will be contracting to deliver and operate the GTA Fare System or part thereof pursuant to the Contract. 1.2 Herein, etc.

The words herein, hereof and hereunder and other words of similar import shall refer to this Agreement as a whole and not to any particular schedule, article, section, sub-section, paragraph or other subdivision of this Agreement.

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1.3

Currency

Any reference to currency is to Canadian currency and any amount advanced, paid or calculated is to be advanced, paid or calculated in Canadian currency. 1.4 Statutes

Any reference to a statute is to such statute and to the regulations made pursuant to such statute, as such statute and regulations may at any time be amended or modified, and to any statute or regulations that may be passed that have the effect of supplementing or superseding such statute or regulations. 1.5 Number

Unless otherwise specified, words importing the singular include the plural and vice versa. 1.6 Divisions, Headings and Table of Contents

The division of this Agreement into articles, sections, subsections, paragraphs and subparagraphs, clauses and schedules, the insertion of headings and the provision of a table of contents are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. 1.7 Governing Law

This Agreement shall be governed by, and be construed and interpreted in accordance with, the laws of the Province of Ontario and the laws of Canada applicable in the Province of Ontario. 1.8 Severability

If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, in whole or in part, such invalidity or unenforceability shall attach only to such provision, which shall be severed from this Agreement, and the remaining provisions of this Agreement shall continue in full force and effect. Provided that the context allows, the remaining provisions shall be interpreted in the same way as they would have been had the severance not taken place. 1.9 Accounting and Auditing Standards

All accounting and financial terms used in this Agreement shall, except where otherwise specifically provided in this Agreement, be interpreted and applied in accordance with generally accepted accounting principles and generally accepted auditing standards in Canada as they exist from time to time.

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1.10

Entire Agreement

a) Subject to Section 23.3 (Remedies cumulative), this Agreement shall constitute the entire Agreement and understanding between the Parties relating to the matters dealt with and supersedes all prior understandings, discussions, negotiations, commitments, representations, warranties and agreements, written or oral, express or implied, existing between the Parties at the date of execution with respect to the subject of this Agreement. None of the Parties shall be bound by any definition, condition, warranty or representation other than as expressly stated in this Agreement or as mandated by federal or provincial law. b) The following Schedules and Attachments are attached to and form a part of this Agreement: i) ii) iii) iv) v) vi) vii) viii) ix) Schedule A Description of the GTA Fare System and Related Components of the Operating Agreement; Schedule B Operating Cost Components and Funding Responsibilities; Schedule C Service Provider Information Sheet; Schedule D Sample Council/Board/Commission By-Law/Resolution; Schedule E Service Providers Confidentiality Requirements; Schedule F Data Rights; Schedule G Communication Requirements; Schedule H - Mediation; and Schedule I Arbitration.

c) In the event of any conflict between the provisions of the documents mentioned below, the following order of precedence shall apply for interpretation purposes: i) The provisions of the Contract shall take precedence over the other Governing Documentation unless otherwise expressly stated in such other Governing Documentation; Except for (c) (i), the provisions of this Agreement shall take precedence over the other Governing Documentation unless otherwise expressly stated in such other Governing Documentation; The provisions of the Procurement Governance Agreement shall take precedence over the Technical Specifications unless otherwise expressly stated in the Technical Specifications; and The provisions of this Agreement (excluding the Schedules) shall take precedence over the Schedules to this Agreement unless otherwise expressly stated in any such Schedule.

ii)

iii)

iv)

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ARTICLE 2 TERM
2.1 Term

Subject always to the provisions of Article 20 (Default, enforcement and termination) herein, this Agreement shall take effect on the Effective Date and shall continue in full force and effect for a period of ten (10) years. 2.2 Renewal

Subject always to the provisions of Article 20 (Default, enforcement and termination) herein, this Agreement may be renewed by agreement of the Ministry and a majority of the Service Providers. Each renewing Service Provider must demonstrate agreement to renew by providing to the Ministry a copy of a by-law or resolution properly authenticated by its respective council or board as the case may be. The renewal period will be for an additional term of three (3) years. The renewal will be on the same terms and conditions as provided herein, unless the Parties agree otherwise, in writing. Thereafter, this Agreement may be renewed for two (2) further terms of three (3) years each provided that the process for renewal described herein is also followed. Each Service Provider shall provide the Ministry with notice of intent to renew 240 days prior to expiration of the Contract. The Ministry shall have no obligation to renew such Contract on behalf of that Service Provider where the Service Provider has failed to provide the Ministry at least 180 days notice prior the expiration of the Contract with the Vendor.

ARTICLE 3 CHANGES IN MINISTRYS PARTICIPATION & SUCCESSOR(S)

3.1 Appointment of Agent, etc.

Each Service Provider designates, appoints and authorizes the Agent and its duly authorized officers as attorneys-in-fact, with full power of substitution, to take all action as an agent on its behalf and, instead of the Service Provider, to exercise all powers and rights, and to perform all duties to enable the Agent to authorize the Vendor to operate the GTA Fare System, in accordance with the terms of this Agreement and the Contract. In addition to the foregoing, each Service Provider agrees that the Agent may, with the approval of the Executive Committee, enter into such further agreements and arrangements, and do all such things as may be reasonably necessary or desirable to facilitate the Operation, as it relates to the GO Transit System and the Municipal Systems as applicable, with the same legal force and effect as if executed by the Service Provider.

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3.2

Appointment of Successor

The Ministry, acting on its own behalf and as Agent, may at any time, subject to the notice required under Article 3 (Change in Ministrys participation & successor(s)), and as determined by the Ministry in its sole discretion, assign, in whole or in part, its rights and obligations under this Agreement to any Successor(s) with the financial and technical capability to take on these rights and obligations. When the Successor(s) accept(s) the assignment from the Ministry, this Agreement shall be assigned, in whole or in part, to the Successor(s) who shall succeed to and become vested with any of the rights, powers, responsibilities, obligations and liabilities of the Ministry, acting on its own behalf and as Agent, that have been assigned to it, and the Ministry, acting on its own behalf and as Agent, shall be discharged from any such rights, powers, responsibilities, obligations and liabilities under this Agreement. After the appointment of any Successor(s), this Agreement or, as set out in the assignment, any part of the Agreement, shall continue in effect for the benefit of the Successor(s) and the Service Providers in respect of any actions taken or omitted to be taken by the Ministry, acting on its own behalf and as Agent. 3.3 Successor(s) Termination

Where the Ministry has not appointed a Successor under Article 3 (Change in Ministrys participation & successor(s)), the Ministry, acting on its own behalf and as Agent, may, if before the end of Launch 3 Completion and with at least one hundred-twenty (120) days prior written notice or if after Launch 3 Completion and with three hundred and sixty five (365) days prior written notice to the other Parties, terminate this Agreement without cause and wind-up the Project, including terminating the Contract and any other agreements and arrangements. Despite the Ministry, acting on its own behalf and as Agent, having terminated this Agreement, the Parties agree that certain rights and obligations (whether contingent or matured, absolute or not) of the Ministry, acting on its own behalf and as Agent, as set out in Section 23.4 (Survival), existing immediately before the termination shall survive such termination. In addition, subject to Section 20.4 (Termination without cause by the Ministry), if the Ministry, acting on its own behalf and as Agent, terminates the Contract after the Contract has been signed by the Vendor, the Ministry, acting on its own behalf and as Agent, shall be responsible for the Contract close-out costs, as set out in the Contract, incurred as a result of such termination, provided that each Party shall take all steps reasonable in the circumstances to mitigate the impact of the Contract close-out costs.

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ARTICLE 4 SERVICE PROVIDER PRECONDITIONS

4.1 Representations and Warranties of Service Provider

a) Each Service Provider covenants, represents and warrants to the Ministry, acting on its own behalf and as Agent, that: i) it has the requisite legislative authority and any necessary approval to enter into this Agreement and to carry out its terms, and has passed any necessary by-law or resolution; it has or will apply for all permits, approvals (including budget approvals), and licenses that are outside the scope of GTAFS procurement which are required in order to operate the GTA Fare System; it has not entered into any agreement or arrangement that would restrict the ability of the Ministry, acting on its own behalf and as Agent, to perform its obligations under this Agreement; subject to Section 20.5 (Termination without cause by a Service Provider), it will provide or arrange for funds to be provided as required under this Agreement; and it has adopted a statement of its procurement policies and goals in accordance with any applicable legislation and such policies and goals permit the Service Provider, as applicable, to participate in the Operation as authorized under such legislation, including the Municipal Act, 2001.

ii)

iii)

iv)

v)

b) The Service Provider shall be deemed to have repeated the representations and warranties each time it provides instructions for GTAFS Operations. The Ministry, acting on its own behalf and as Agent, shall have no obligation to make any inquiry to confirm the truth or accuracy of any representation or warranty. The Ministry, acting on its own behalf and as Agent, shall not be liable for any loss or damages suffered by any of the Service Providers, the Ministry, or any other person as a result of any act or inaction of the Ministry, acting on its own behalf or as Agent, based on instructions provided by the Service Provider, including without limitation the execution of this Agreement by a person purporting to have authority to act on the Service Providers behalf provided that this section does not relieve the Ministry from liability arising from its own negligent acts or omissions or its wilful misconduct in the performance of its obligations arising from those instructions.

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4.2

Addition of Service Providers to this Agreement

The Ministry, on its own behalf and as Agent, may, from time to time after the Effective Date of this Agreement and with the approval of the Executive Committee, add Eligible Service Providers as Parties to this Agreement. Once added as a Party to this Agreement, and upon providing the following documentation to the Agent, an Eligible Service Provider shall become a Service Provider: a) b) An information sheet on the Eligible Service Provider (attached as Schedule C (Service Provider information sheet)); and A certificate confirming passage and enforceability of a by-law or resolution, as applicable which includes, at a minimum, the information in the sample bylaw/resolution attached as Schedule D (Council/board/commission bylaw/resolution), including the designation of persons authorized to provide instructions and any necessary approval for the Operation as Steering Committee Member, Alternate Steering Committee Member, Executive Committee Member, or Alternate Executive Committee Member, and confirming that all necessary actions have been taken by the Eligible Service Provider to authorize such persons to give instructions and any necessary approval for the Operation. The designations shall refer to positions rather than to specific individuals.

Each Service Provider agrees that this Agreement is binding on it regardless of the addition of Eligible Service Providers by the Ministry as Parties to this Agreement. Upon becoming a Service Provider, the Eligible Service Provider shall become a Party to and shall be bound by this Agreement, as of the date of executing a counterpart to this Agreement, which it shall have delivered to the other Parties, and as if it had been an original Party to this Agreement, without any further action or execution required by any existing Service Provider. Each existing Party will become bound to a new Party upon delivery of the counterpart to that Party. Delivery from an existing Party to a new Party shall take effect upon receipt of a copy of the Agreement from the Agent, as if it were an original copy signed by the Parties, by the new Party. 4.3 Co-operation with Agent

Each Service Provider shall fully co-operate with the Agent, and allow the Agent, in accordance with the terms and conditions of this Agreement, to act on its behalf in respect of GTAFS Operations, including matters in furtherance of the GTAFS Operations. Further, each Service Provider shall take all reasonable steps necessary to enable the Agent to carry out its responsibilities in relation to the Contract. 4.4 a) Contract between Service Providers and Vendor A Service Provider may enter into a contract with the Vendor in relation to the GTA Fare System with the express written consent of Ministry, acting on its own behalf

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and as Agent, which consent shall not be unreasonably withheld. b) A Service Provider must ensure Contract commitments contained in Section 1.3 (Exclusivity and Minimum Volumes) of the MSSA for equipment have been met before entering a contract with a vendor for equipment with a similar purpose. Operation of the GTA Fare System

4.5

Each Service Provider shall operate the GTA Fare System as it applies to such Service Provider in accordance with the operating policies approved by the Executive Committee in accordance with Section 5.1 (General responsibilities). 4.6 Commitments and Payment of Moneys

Each Service Provider shall be responsible for the payment of funds set out in Article 13 (Funding). Before a Service Provider provides instructions for the Operation and arranges for the payment of funds towards the Operation, the Service Provider shall ensure that it has the authority to provide such instructions and sufficient funds to cover the amount of such payment.

ARTICLE 5 SERVICE PROVIDERS

5.1 General Responsibilities

Each Service Provider shall: a) b) Work co-operatively, fairly and responsibly with other Service Providers, the Vendor, and Ministry for successful operation of the GTAFS; Ensure that it completes and maintains all necessary steps to commence and continue operation in the GTAFS including but not limited to the installation of equipment and software, training of staff, and communication with its customers; Appoint sufficient staff it deems necessary to meet obligations for its participation in the GTAFS for its operation; To avoid liability for fraud, implement and maintain customer (credit/debit card) payment verification practices as approved by Executive Committee; Provide banking direction to settle accounts with the Central System;

c) d) e)

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f) g) h) 5.2

Implement Part 9 Business Rules that exist at that time and that may be modified from time to time; Take all reasonable steps within its control to ensure that any of its actions does not cause the Ministry to commit a default under the terms of the Contract; and Not be entitled to vote on a motion to remove itself as a Party to the Agreement and to the Project. Responsibilities To the Vendor

Each Service Provider shall where applicable: a) b) c) Nominate local Third Party Agency network locations; Approve Third Party Agency contract jointly developed and / or modified with Vendor; Ensure its Third Party Agency network is established and maintained to sell and load value to fare cards either by working with the Vendor or with its own resources; Use the GTA Fare System in the Service Providers operations including: i) Operate appropriate Service Provider devices; ii) Ensure Service Provider devices are functional prior to commencing 1perations daily; iii) Monitor condition and status of devices during operations as required; iv) Perform preventative and first line maintenance of devices as detailed in the Technical Specifications; and v) Access reports and other system functionality via Service Provider website on the Central System; e) Pay the Vendor directly for contracted services related to technical and Third Party Agency network support, as laid out in Article 13 (Funding) and in Schedule B (Operation Cost components and funding responsibilities), including any penalties due for late payment; and Provide assistance as necessary in any disputes between a customer and the Vendor as required under Executive Committee policy.

d)

f)

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5.3

Responsibilities to the Ministry

Each Service Provider shall: a) Request and fund Contract changes from the Ministry for service changes, enhancements, or new or modified transit and municipal applications that the Ministry will procure from the Vendor on behalf of the Service Provider; Transfer funds owed to Central System and pay any due fees; Provide notice to the Ministry of its acceptance of new and modified applications, service changes, equipment, processes and procedures, as requested by the Service Provider; Provide notice to the Ministry of its acceptance of its Service Provider system, including systems for Service Providers added under Section 4.2 (Addition of Service Providers to this Agreement), before commencing Operations; Promptly report Vendor performance deficiency issues to the Ministry; and Provide notice to the Ministry with appropriate details and documentation of any payment dispute between the Service Provider and the Vendor. Responsibilities to Customers

b) c)

d)

e) f) 5.4

Each Service Provider shall: a) b) Be solely responsible to provide customer related service and information for its own transit system; Market the GTA fare card within the area of its transits operation using common marketing material developed by all of the Parties as part of the marketing plan; and Provide for the sale of fare cards and the ability to load value onto the fare cards either through its own facilities or Third Party Agency network. Responsibilities to Other Service Providers

c) 5.5

Each Service Provider shall: a) Work toward the harmonization of customer service support levels throughout the GTA including support levels for telephone information services and web based information services; and

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b)

Work co-operatively, fairly and responsibly with other Service Providers in all aspects of the GTAFS.

ARTICLE 6 THE MINISTRY

6.1 General Responsibilities

The Ministry shall: a) b) c) d) e) f) Work co-operatively, fairly and responsibly with Service Providers and the Vendor, for the successful Operation of the GTAFS; Ensure that it completes and maintains all necessary steps to commence and continue to operate the Central System; Appoints sufficient staff it deems necessary to meet its obligations in the GTAFS Operation; Terminate, renew or modify the Contract on its own behalf and in accordance with the direction of the Executive Committee as agent as required; Manage Vendor disputes, including those involving Service Providers as provided in Article 10 (Vendor); Obtain appropriate and complete licence(s) for Vendors intellectual property, pursuant to the licence rights of the GTA Fare System components as provided in the Contract, required to operate the GTAFS on its own behalf and as Agent for Service Providers; Manage and maintain all Ministry assets as defined in Article 14 (Assets), of this Agreement to the extent permitted in the RFP and the Contract; Bring forward for Executive Committee review, any contract for other applications, to use the Central System in addition to the GTAFS Transit Application, before the Ministry enters into the contract; Nominate a Project Director for the approval of the Executive Committee; and Oversee and ensure the operation of the Central System is undertaken in a fiscally sound and responsible manner.

g) h)

i) j)

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6.2

Financial Responsibilities

The Ministry shall: a) b) c) d) Be responsible for Ministry costs defined in Article 13 (Funding) and Schedule B (Operating cost components and funding responsibilities); Guarantee Service Providers payments to the Vendor for technical support and Third Party Agency network operations; Settle accounts with funds and fees due from Service Providers and make payments to Service Providers for payments and fees due; Be accountable for and manage all accounts and investments as part of the GTAFS Operations in accordance with Executive Committee approved policies; and Monitor Vendors management of fare card customer accounts and take appropriate action under the Contract where necessary. Responsibility to the Vendor

e) 6.3

The Ministry shall: a) b) c) d) e) Manage the Vendor according to the terms and conditions of the Contract; Implement approved operating changes to the Contract on behalf of the Ministry and Service Providers pursuant to the Contract; Communicate service deviations or deficiencies and other changes between the Vendor and any/all Service Providers; Monitor and communicate Vendor compliance with Vendor Service Level Agreement and take appropriate action under the Contract where necessary; and Monitor that the Vendor maintains approved data protection and security requirements pursuant to the Contract and take appropriate action under the Contract where necessary. Responsibility to the Service Providers

6.4

The Ministry shall: a) On behalf of the Service Provider, certify to the Vendor each Service Provider system, including systems for Service Providers added under Section 4.2

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(Addition of Service Providers to this Agreement), after acceptance by the Service Provider and before commencing Operations; b) On behalf of the Service Provider, certify to the Vendor new and modified applications, equipment, processes & procedures after acceptance by the Service Providers, as applicable; Co-ordinate performance of Service Provider obligations to the Vendor and other Parties; Develop and maintain a Service Level Agreement to cover obligations between Service Providers and the Ministry. The SLA shall include service level descriptions, protocols and processes for GTA Fare System standard Operations, exception operations, financial transaction tracking and reporting, service and contact arrangements for after hours support; Prepare an annual report and an annual work plan for GTAFS Operations; and Prepare a marketing plan and Communications Plan in consultation with Service Providers. Responsibility to the Transit Customer

c) d)

e) f) 6.5

The Ministry shall: a) b) c) Manage the Vendor to meet Vendor responsibilities to maintain customer privacy protection standards in accordance with the provisions of FIPPA and MFIPPA; Manage a process to settle card related disputes between the customer and Vendor; and Manage GTA fare card brand including marketing materials, and brand recognition.

ARTICLE 7 RELATIONSHIP BETWEEN THE PARTIES

7.1 Residual Decisions

Unless specifically identified in this Agreement as a Policy Decision of the Steering Committee or an Executive Decision of the Executive Committee, all decisions that need to be made pursuant to this Agreement shall be considered to be Residual Decisions and shall be made in accordance with policies set out by the Executive Committee.

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7.2

No Partnership, Joint Venture or Corporation

The execution of this Agreement and the other arrangements with respect to the operations of the GTA Fare System are not intended to create, and shall not be treated as having created, a general or limited partnership, joint venture, or corporation. 7.3 Members of Council, Officers, Agents, etc

Each Service Provider and its members of commissions, council, officers, agents, Contractors and employees are not, nor are they deemed to be, officers, agents (with the exception of GO Transit), employees or officials of the Ministry. 7.4 No Fiduciary Duties

The Ministry shall not by reason of this Agreement or any of the discussions leading to or in connection with this Agreement have a fiduciary or trust relationship with the Service Providers or any other person, or any other obligation other than as specifically stated in this Agreement.

ARTICLE 8 STEERING COMMITTEE

8.1 Establishment of Steering Committee

The Parties agree to establish an Operating Agreement Steering Committee. The role of the Steering Committee shall be to provide overall management and advice, monitor operations, and recommend adjustments to ensure the Operation of the GTAFS is carried out in accordance with this Agreement and the policies approved by the Executive Committee under Section 9.8 (Executive Decisions), and to provide any necessary approval in accordance with this Article 8 (Steering Committee). 8.2 Appointment of Steering Committee Members

The Ministry, on its own behalf, and each Service Provider shall appoint one member to the Steering Committee (the Steering Committee Member). The Ministry, on its own behalf, and each Service Provider may also appoint one or more alternates for such Partys Steering Committee Member (an Alternate Steering Committee Member). An Alternate Steering Committee Member may attend and act at Steering Committee meetings in the Steering Committee Members absence, as if such Alternate Steering Committee Member was the Steering Committee Member for such Party. The appointment of the Steering Committee Member and the Alternate Steering Committee Member for a Service Provider shall be confirmed by a by-law or resolution of the council of the Municipality or the commission or board (as applicable). The designation shall refer to a position rather than a specific individual.

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8.3 a) b)

Chair of Steering Committee The Ministry shall appoint the Project Director as chair of the Steering Committee to serve at the pleasure of the Ministry. The responsibilities of the Steering Committee chair include: i) ii) iii) iv) Establishing the agenda of each meeting of the Steering Committee; Distributing the agenda of each meeting of the Steering Committee at least seven (7) days prior to such meeting; Recording, distributing and storing the minutes of such meetings; and Reporting recommendations and discussions of the Steering Committee to the Executive Committee as required.

8.4 a) b) c) d)

Vice Chair The Steering Committee shall select from among its members a vice chair. The vice chair shall hold office for a one year period from the anniversary of selection. A member who is acting as vice chair is eligible for re-appointment as long as they retain their status as a member of the Steering Committee. The vice chair shall act as Steering Committee chair in the absence of the Steering Committee chair, with all of the duties, rights and responsibilities of the Steering Committee chair. In the absence of the Steering Committee chair and the vice chair, and provided a quorum of the Steering Committee Members is present, the Steering Committee Members present shall select an acting Steering Committee chair from amongst themselves, with all of the duties, rights and responsibilities of the Steering Committee chair, until such time as the chair or vice chair are no longer absent. Meetings The Steering Committee shall meet at least quarterly and may meet more often where the chair requests additional meetings. Unless the Steering Committee decides otherwise, all meetings of the Steering Committee shall be held at the Project Office. Any two (2) Steering Committee Members can, by at least ten (10) days prior written notice to the chair and to the other Steering Committee Members,

8.5 a) b) c)

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requisition a special meeting of the Steering Committee. The written notice shall specify the issue. 8.6 Quorum

A quorum for the transaction of business at any meeting of the Steering Committee shall consist of at least sixty percent (60%) of the total number of the Steering Committee Members of all Parties, except the Agent. 8.7 Voting

The Ministry, on its own behalf, and each Service Provider shall have one vote. Parties must be present to vote. 8.8 a) b) Policy Decisions All Policy Decisions of the Steering Committee require the approval of at least sixty percent (60%) of the Steering Committee Members present. Policy Decisions that the Steering Committee has authority to implement are limited to; i) Establishment of sub-committees to assist in fulfilling the successful Operation of the GTAFS, including sub-committees to recommend operating policies; and Establishment of rules and procedures regarding its own meetings.

ii) c)

Policy Decisions that must be recommended to the Executive Committee may include but are not limited to the following: i) ii) Budget and any changes to the Budget, including changes resulting from a Budget issue that affects Service Provider budgets; Policies and methodology for investment of funds, including Surplus Funds, and for distribution of costs and revenues, including investment revenues amongst the Parties; Ministry as Agent entering into Contract modification or renewal; Subject to agreement of all Parties in the sharing of costs related thereto, the Ministry terminating the Contract with the Vendor; Service Provider requested new or modified transit and municipal applications for development, implementation and operation;

iii) iv) v)

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vi) vii) viii) ix) x) xi)

Approval of the annual audit report; Annual work plan and annual report; Marketing plan and Communication Plan; Changes to Part 9 Business Rules including fees & commissions; Operating agreements including Service Level Agreements to manage the ongoing Operation of the GTAFS; Operating policies and procedures for the Operation of the GTA Fare System or changes thereto including; Data rights and data access; Customer dispute resolution; Privacy policy; Report distribution; Third Party Agency contracts including credit worthiness; Fare card load value limits; and

xii) d)

Removal of a Service Provider as a Party to this Agreement and a participant in the GTAFS.

Policy Decisions that have not been resolved by the Steering Committee shall be forwarded to the Executive Committee for resolution;

ARTICLE 9 EXECUTIVE COMMITTEE

9.1 Establishment of Executive Committee

The Parties agree to establish an Operating Agreement Executive Committee. The role of the Executive Committee shall be to provide overall leadership and direction, monitor operations, and make adjustments to ensure the Project operates in accordance with operating policies to be approved by the Executive Committee under Paragraph 9.8 (c) (vii) (Executive Decisions), and to provide any necessary approval in accordance with this Article 9 (Executive Committee). 9.2 Appointment of Executive Committee Members

The Ministry, acting on its own behalf, and each Service Provider shall appoint one member to the Executive Committee (the Executive Committee Member). The Ministry, acting on its own behalf, and each Service Provider may also appoint one or more alternates for such Partys Executive Committee Member (an Alternate Executive Committee Member). An Alternate Executive Committee Member may attend and act 29 of 82

at Executive Committee meetings in the Executive Committee Members absence, as if such Alternate Executive Committee Member was the Executive Committee Member for such Party. The appointment of the Executive Committee Member and the Alternate Executive Committee Member for a Service Provider shall be confirmed by a by-law or resolution of the council of the Municipality or the commission or board (as applicable). The designation shall refer to a position rather than a specific individual. 9.3 a) Chair of Executive Committee The Ministry shall appoint the chair of the Executive Committee to serve at the pleasure of the Ministry for a term of one (1) year that may, at the discretion of the Ministry, be extended for additional one (1) year term up until the Launch 3 Completion. Upon expiry of the Ministry term as chair upon Launch 3 Completion, the Executive Committee members shall appoint a chair among the members. The responsibilities of the Executive Committee chair include: i) ii) iii) 9.4 a) b) c) d) Establishing the agenda of each meeting of the Executive Committee; Distributing the agenda of each meeting of the Executive Committee at least seven (7) days prior to such meeting; and Recording, distributing and storing the minutes of such meetings.

b) c)

Vice Chair The Executive Committee shall select from among its members a vice chair. The vice chair shall hold office for a one year period from the anniversary of s election. A member who is acting as vice chair is eligible for re-appointment as long as they retain their status as a member of the Executive Committee. The vice chair shall act as Executive Committee chair in the absence of the Executive Committee chair, with all of the duties, rights and responsibilities of the Executive Committee chair, including voting. In the absence of the Executive Committee chair and the vice chair, and provided a quorum of Executive Committee Members is present, the Executive Committee Members present shall select an acting Executive Committee chair from amongst themselves, with all of the duties, rights and responsibilities of the Executive Committee chair until such time as the chair or vice chair are no longer absent.

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9.5 a) b)

Meetings The Executive Committee shall meet at least two (2) times per year, and may meet more often where the chair requests additional meetings. Unless the Executive Committee decides otherwise, all meetings of the Executive Committee shall be held at the Ministry of Transportation office at Queens Park. Any two (2) Executive Committee Members can, by at least ten (10) days prior written notice to the chair and to the other Executive Committee Members, requisition a special meeting of the Executive Committee. The written notice shall specify the purpose of the meeting including proposed topics and decision points. Quorum

c)

9.6

A quorum for the transaction of business at any meeting of the Executive Committee shall consist of at least sixty percent (60%) of the Executive Committee Members of all Parties. 9.7 Voting

The Ministry, on its own behalf, and each Service Provider shall have one vote. Members must be present to vote. 9.8 a) Executive Decisions The following are Executive Decisions that relate to the performance of the Agent and the Ministry and, despite Section 9.6 (Quorum), require the concurrence of the Executive Committee Members representing all the Service Providers (excluding GO Transit): i) Approval of the Ministry, acting on its own behalf and as Agent, assigning its rights and obligations under this Agreement in accordance with Section 23.6 (No assignment); ii) The determination of whether an Event of Default on the part of the Ministry, acting on its own behalf or as Agent, or both, has occurred; iii) The determination of whether an Event of Default on the part of the Ministry, acting on its own behalf or as Agent, or both, is curable or has been cured; and iv) Approval of the termination of this Agreement in accordance with Section 20.3 (Termination for Event of Default by Ministry), taking into consideration

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whether the termination date can be resolved so as to minimize the adverse impact on the GTA Fare System. b) The following are Executive Decisions that require the concurrence of each of the Executive Committee Members present: i) ii) Budget and any changes to the Budget, including a change resulting from a Budget issue that affects Service Provider Budgets; Policies and methodology for investment of funds, including Surplus Funds, and for distribution of costs and revenues, including investment revenues amongst the Parties; Subject to agreement of all Parties in the sharing of costs related thereto, the Ministry terminating the Contract with the Vendor;

iii)

iv) Procedures and rules regarding Executive Committee meetings; v) Changes to Part 9 Business Rules that impact the majority of members, including fees and commissions schedules that affect a majority of the members;

vi) Service Level Agreement or modification thereof between the Ministry and the Service Providers; and vii) Removal of a Service Provider as a Party to the Agreement and participant in the GTAFS. c) Any other decision is considered a Residual Decision that requires a minimum of sixty (60) percent approval of the members of the Executive Committee present at a meeting. Residual items include but are not limited to: i) ii) iii) iv) v) vi) Ministry nominee as Project Director; Annual work plan and annual report; Annual audit report; New or modified transit or municipal application for development, implementation and operation; Marketing plan and Communication Plan; Confirmation including the terms and conditions, of new Service Providers participating in GTAFS;

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vii)

Operating Policies including; Data rights and data access; Customer dispute resolution; Privacy policy; Report distribution; Third Party Agency contracts including credit worthiness; and Fare card load value limits;

viii) ix)

Operating procedures and agreements to manage the ongoing Operation of the GTAFS; Changes to Part 9 Business Rules that do not impact majority of members including the following fees and commissions: GO Transit specific fees Card issuance fee Photo fee Card mailing and postage fee Overdraft fee; and

x) d)

Contract renewal or amendment (concurrence of impacted parties).

The following matter requires Executive Committee review: i) The Ministry entering into a contract for other applications to use the Central System in addition to the GTAFS Transit Application.

e)

Any failure of the Executive Committee to achieve concurrence on any matter under this Section 9.8 (Executive Decisions) shall be dealt with in accordance with Article 19 (Dispute resolution).

ARTICLE 10 VENDOR
10.1 Ministrys Contract with Vendor

The Ministry shall enter into a Contract, or agree to any Contract amendment, with the Vendor only after it has received the approval or review of the Executive Committee as required to enter into such Contract, or amend such Contract.

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10.2

Disputes with Vendor

Disputes between any or all of the Ministry, a Service Provider and the Vendor shall be resolved in accordance with the Contract, the terms of this Agreement, and any applicable law. 10.3 a) b) Service Providers and Agents Responsibilities in Dispute with Vendor The Ministry shall be responsible for the handling of all disputes that may arise between it and the Vendor under the Contract. Despite the above, each Service Provider shall be responsible for the handling of all disputes that may arise between the Service Provider and the Vendor in relation to any direct contract exclusively entered into between the Service Provider and the Vendor in accordance with Article 4.4 (Contract between Service Providers and Vendor). The Ministry, if requested by any of the Service Providers and without subjecting itself to any costs, including legal costs, or liability, may join in the resolution of complaints with the Vendor. Dispute Costs

10.4

Unless otherwise provided in the Contract, dispute costs, including the Ministrys while acting as Agent, such as the Ministrys legal expenses and other costs related to the dispute are to be borne by any Party to which the complaint relates and the Vendor.

ARTICLE 11 DATA RIGHTS

11.1 11.2 Each Party shall have the rights to data as provided in Schedule F (Data rights). Not withstanding Article 11(Data rights), the Executive Committee may amend Schedule F (Data rights) from time to time.

ARTICLE 12 CONFLICT OF INTEREST

12.1 Conflict of Interest

Each Party and any of its respective advisors, partners, directors, commissioners, officers, Personnel, agents, or Contractors shall not engage in any activity or provide 34 of 82

any services where such activity or the provision of such services creates a conflict of interest (actually or potentially) with the terms and conditions set out in this Agreement. Each Party acknowledges and agrees that it shall be a conflict of interest for it to use Confidential Information, without specific authorization from the appropriate other Party to do so.

ARTICLE 13 FUNDING
13.1 Ministry Funding Contribution

The Ministry shall be exclusively responsible to provide funds for the following: a) Vendor Costs as set out in Schedule B (Cost components and funding responsibilities) and as contained in the Contract for Central System Operating Costs including banking fees, call centre, telecommunications equipment and staffing; MTO implemented additional applications; Requirements to meet growing Central System volumes; Annual audit; Central support for branding and marketing of GTAFS; and Project Office.

b) c) d) e) f) 13.2

Service Provider Funding Contribution Each Service Provider shall be exclusively responsible to provide funds for the following: a) Promptly paying its own operating costs, including late payment penalties, for Centrally Managed Services, as defined in Schedule B (Operating Cost components and funding responsibilities) to the Vendor; Internal costs related to ongoing support to GTAFS Operations; Ongoing marketing of GTAFS within its service area; and All costs for additional applications or enhancements that the Service Provider requests from the Ministry acting as Agent within the Contract.

b) c) d)

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13.3

Funding Responsibilities for GTAFS Enhancements a) b) c) Each Party shall be exclusively responsible to pay for all costs associated with any enhancements to the GTAFS that is intended for its sole benefit. Where two or more Parties request an enhancement to the GTAFS each shall contribute in agreed amounts to the costs of such enhancement. A Service Provider or the Ministry who has contributed to an enhancement under Sub-section 13.3 (a) or (b) respectively, shall be entitled to negotiate the terms and conditions with any other Party that has not contributed to have access to the enhancement. Pursuant to the Contract the Ministry shall own the intellectual property; if any, as per Section 14.1 (Intellectual Property Rights) for enhancements to the benefit of the Party or Parties requesting the enhancement.

d)

13.4

Default in Payment by Service Provider

Each Service Provider agrees that the Ministry, acting on its own behalf and as Agent, shall be responsible for payments to the Vendor under the Contract, either directly or indirectly through a Successor, and that moneys for such payments shall be recovered by the Ministry, acting on its own behalf and as Agent, either directly or indirectly through a Successor, from the Service Providers. If the Ministry, acting on its own behalf and as Agent, either directly or indirectly through a Successor requests that payment be made by a Service Provider, in accordance with the terms of this Agreement, to satisfy the terms of the Contract, and the Service Provider provides no or insufficient funds to pay, when due, for the Operation payments, and if it is found that the Service Provider is in default as pursuant to Section 20.1 (Event of Default), then the Service Provider, with respect to the Operation, shall have no interest in the Operation or income relating thereto or proceeds thereof and Article 20 (Default enforcement and termination) shall apply. 13.5 Insufficient Funds provided by the Legislature or Municipal Council

a) By virtue of the Financial Administration Act, the obligations of the Ministry, acting on its own behalf and as Agent, GO Transit, and any Successor, where applicable, to make any payment under this Agreement are deemed to be subject to the condition that the payment is authorized by an appropriation for the fiscal year in which the payment comes due or its having been charged to an appropriation for a prior fiscal year. b) If, in the opinion of the Ministry, acting on its own behalf and as Agent, the Legislative Assembly of Ontario does not provide the Ministry, GO Transit, or a Successor, where applicable, with sufficient funds to continue its participation in this Agreement for any provincial fiscal year during which this Agreement is in effect, the Ministry, acting on its own behalf and as Agent, may terminate this

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Agreement in accordance with the terms specified in Section 20.4 (Termination without cause by the Ministry). c) If the municipal council of the Municipality does not provide the Municipality with sufficient funds to continue its participation in this Agreement for any municipal fiscal year during which this Agreement is in effect, the Municipality may terminate this Agreement in accordance with the terms specified in Section 20.5 (Termination without cause by a Service Provider).

ARTICLE 14 ASSETS
14.1 Intellectual Property Rights

Intellectual Property Rights to the GTA Fare System components shall be as provided in the Contract unless otherwise provided in this Agreement. 14.2 Service Provider Assets

a) Each Service Provider shall retain its respective ownership interests in all aspects of its Service Provider system including all related devices, equipment, parts, spares and related networks that it had paid for. Subject to this Agreement, while participating as a Service Provider in relation to the GTA Fare System, no Service Provider has the right to distribute any asset acquired through the Procurement as defined in the Procurement Governance Agreement without Ministry approval. b) Service Providers may acquire additional assets, under the Contract as part of this Agreement upon expiry of the Procurement Governance Agreement. c) Each Service Provider shall have exclusive ownership of the data related to their respective fare transactions. 14.3 Ministry Assets

a) In recognition of the Parties acknowledgement that the GTAFS is not a partnership or joint undertaking, the Ministry has exclusive ownership interest in all elements of the GTAFS that cannot be divided for the benefit of the other Parties including: i) ii) iii) GTAFS Transit Application and associated rights; Fare card; GTA Fare System logo and brand; and

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iv)

Central System licenses, equipment and leases as appropriate;

For greater clarity, the Service Providers shall not have any legal or beneficial, or both, ownership interest in the Central System pursuant to the Contract which shall be owned by the Ministry or a Successor. b) Pursuant to Section 14.1 (Intellectual Property Rights), the Ministry shall work with Service Providers to address the necessary Intellectual Property Rights needed by Service Providers for use of the GTA Fare System.

ARTICLE 15 COMMUNICATION PLAN

15.1 Communication Plan

a) The Parties agree that public communication with third parties in relation to the GTA Fare System shall be carried out in accordance with the terms and conditions set out in the Communication Plan approved by the Executive Committee under Paragraph 9.8 (c )(v) (Executive Decisions); b) The purpose of the Communication Plan is for the Ministry and Service Providers to communicate with the public about the GTA Fare System and to enhance opportunities for appropriate, continuous and consistent recognition of the cooperative efforts of the Parties. The Communications Plan shall include the communications requirements set out in Schedule G (Communication Requirements); and c) Public communication covered under the Plan shall include: i) Public information material related to the GTAFS; ii) Media releases; iii) Media conferences, public announcements and other joint events; and iv) Signage.

ARTICLE 16 CONFIDENTIAL INFORMATION

16.1 Confidential Information

During and following the term of this Agreement, each Party shall keep in accordance with the terms and conditions set out in Schedule E (Confidentiality requirements), and ensure that its advisors, agents, directors, commissioners, officers, partners, 38 of 82

Personnel, representatives and Contractors keep all Confidential Information confidential in accordance with the terms and conditions set out herein, and which must be contained in any applicable confidentiality agreement. 16.2 Disclosure of Confidential Information to Vendor

Each Service Provider acknowledges and accepts that the Ministry has undertaken certain obligations on its own behalf and as Agent, in relation to the disclosure of Confidential Information with the Vendor pursuant to the Contract. Consequently each Service Provider accepts that it is required to comply with the disclosure of Confidential Information provisions of the Contract subject to any applicable laws. 16.3 Injunctive and Other Relief

Each Party acknowledges that breach of any provisions of this Article 16 (Confidential Information) may cause irreparable harm to the other Parties or to third party to whom the Party owes a duty of confidence, and that the resulting injury to such Party or to any third party may be difficult to calculate and adequately compensate in damages. Each Party agrees that any other Party is entitled to obtain injunctive relief (without proving any damage sustained by it or by any third party) or any other remedy against any actual or potential breach of the provisions of this Article 16 (Confidential Information), subject to any applicable statutory exemptions and acknowledging that any request for equitable relief is within the discretion of a court. 16.4 Notice and Protective Order

If a Party or any of its advisors, agents, directors, commissioners, officers, partners, Personnel, representatives or Contractors becomes legally compelled to disclose any Confidential Information, the Party shall provide prompt notice to that effect to allow each affected Party to seek one or more protective orders or other appropriate remedies to prevent or limit such disclosure, and it shall co-operate with the affected Party and such Partys legal counsel. If such protective orders or other remedies are not obtained, the Party will disclose only that portion of the Confidential Information which the Party is legally compelled to disclose, only to such person or persons to which the Party is legally compelled to disclose, and the Party shall provide notice to each such person or persons in co-operation with legal counsel for the affected Party that such Confidential Information is confidential and subject to non-disclosure on terms and conditions substantially similar to and not materially less protective than those in this Agreement and, if possible, shall obtain from each such person or persons written agreement to receive and use such Confidential Information subject to those terms and conditions. 16.5 Partys Advisors, Agents, Personnel and Contractors

Each Party shall limit the disclosure of the Confidential Information to only those of its advisors, agents, directors, commissioners, officers, Personnel, representatives or Contractors who need to know it in order to perform the Partys obligations under this

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Agreement and who have been specifically authorized by the Party to have such disclosure. Each Party shall advise its advisors, agents, directors, commissioners, officers, Personnel, representatives and Contractors of the requirements of this Article 16 (Confidential Information) and take appropriate action to ensure their compliance with its terms. In addition to any other liabilities of each Party pursuant to this Agreement or otherwise at law or in equity, each Party shall be liable for any and all liability, losses, costs, damages, expenses (including all reasonable legal, expert and consultant fees), causes of action, and proceeding arising from any non-compliance with this Article 16 (Confidential Information) by a Partys advisors, agents, directors, commissioners, officers, Personnel, representatives or Contractors. Each Party shall require each of its advisors, agents, directors, commissioners, officers, Personnel and Contractors dealing with Confidential Information to execute a confidentiality agreement, with terms and conditions as set out in Schedule E (Confidentiality requirements), and which shall form part of this Agreement. In addition to the above, each Party shall request each undersigned to a confidentiality agreement who will disclose Confidential Information in accordance with such confidentiality agreement to require the recipient of that Confidential Information to execute a recipient confidentiality agreement, with the same terms and conditions as set out in Schedule E (Confidentiality requirements), which shall form part of the Agreement. Each Party shall provide the appropriate affected Party with an original signed copy of each executed confidentiality agreement and recipient confidentiality agreement prior to any Confidential Information being provided to a Partys advisors, agents, directors, commissioners, officers, Personnel, representatives and Contractors.

ARTICLE 17 RECORDS AND AUDITS

17.1 Annual Audit

The Ministry will undertake an annual audit at its cost of the Vendor in accordance with the Contract provisions and bring the audit report to Executive Committee for approval. 17.2 Maintenance of Records by Vendor

The Ministry shall monitor Vendor compliance with Contract provisions to keep and maintain in an organized and accessible mode and manner records and documentation sufficient to detail the significant history of the operation and take appropriate action under the Contract where necessary. 17.3 Period for Keeping Records

The Ministry shall monitor Vendor compliance with Contract provisions to keep and maintain records related to the Operation for a period of seven (7) years from the date

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this Agreement has expired or is terminated in accordance with the terms of this Agreement and take appropriate action under the Contract where necessary.
17.4

Spot Audits

a) The Ministry shall co-ordinate all spot audits of the Vendor under this Sub-section and they shall be conducted pursuant to the Contract. b) The Executive Committee shall approve a process to undertake spot audits. The total number of spot audits in any twelve (12) month period starting from the Effective Date shall not exceed two times the number of Service Providers in Operation. c) Where Ministry or Service Provider has reason to believe that a fraud or breach of privacy has occurred, no prior notice will be provided, and the Ministry or a Service Provider shall be entitled, at any time, to perform audits specifically to investigate the suspected fraud or breach of privacy. For greater clarity, all audits conducted under this sub-section shall be co-ordinated by the Ministry. d) The Parties acknowledge that in carrying out such spot audits, the Parties will use reasonable efforts to minimize any disruption to Vendors business operations. e) The Party initiating any spot audit shall be exclusively responsible for costs related to such Spot Audit. f) Notwithstanding Sub-section 17.4 (e), the Party initiating a spot audit may require the payment of costs by the Vendor related to such audit where the results of the audit show a variance as provided for in the Contract. g) All Parties shall promptly provide the Ministry with a copy of any spot audit report. h) Spot audit reports shall be the property of the Party on whose behalf the spot audit was conducted. i) Information from the spot audit and the spot audit report may be shared with other Parties subject to the provisions of Article 16 (Confidential Information) in this Agreement.

ARTICLE 18 INTENTIONALLY BLANK

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ARTICLE 19 DISPUTE RESOLUTION

19.1

Legal Remedies for Disputes

The Parties hereby agree to utilize the following escalation procedure to resolve any dispute, question, claim, or other matter arising out of or relating to this Agreement (collectively, a Dispute) prior to resorting to any legal remedies. Despite the above, this Article 19 (Dispute resolution) shall not apply to any dispute between the Ministry and GO Transit. 19.2 Three-tiered Dispute Resolution

The Parties agree that any Dispute shall be referred for dispute resolution by high-level negotiation, mediation or arbitration in the manner hereinafter described. For greater certainty, a Party may refer a Dispute to dispute resolution under the provision of this Article 19 (Dispute resolution) by the delivery of a notice requesting dispute resolution to the other Parties, which notice shall set out the Dispute in reasonably sufficient detail (a Dispute Notice). 19.3 High-Level Negotiation

In the event a Party issues a Dispute Notice to the other Parties, the chief administrative officer or equivalent of each Party shall meet and make an effort in good faith to resolve the Dispute as set out in the Dispute Notice in a prompt manner and for the purpose of same, each Party shall provide its negotiator with full and timely disclosure of all relevant facts, information and documents to facilitate such negotiation. Negotiations shall be commenced within thirty (30) Business Days of the delivery of a Dispute Notice and shall, unless all Parties agree otherwise, be concluded within thirty (30) Business Days of their commencement. In the event that a resolution satisfactory to all Parties is achieved through such negotiations, the Parties shall issue a joint statement detailing the manner in which the Dispute has been resolved. 19.4 Mediation

If the Dispute has not been resolved through high-level negotiation as contemplated in Section 19.3 (High-level negotiation), the Dispute will be referred to structured negotiation with the assistance of a mediator appointed by mutual agreement of the Parties within thirty (30) Business Days of any Party issuing a supplementary Dispute Notice requesting mediation. If a mutual agreement is not reached within the timelines set out above, then the Ministry, acting in good faith, may appoint a mediator and provide the other Parties with written notice of such appointment. The mediator shall be

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an independent person who by training and experience has the professional qualifications and the mediation skills to mediate any Dispute that may arise among the Parties to this Agreement. Unless the Parties agree otherwise at the time, the mediation shall proceed in accordance with the mediation procedures set out in Schedule H (Mediation). If the Parties achieve a resolution of the Dispute, the mediator shall confirm the resolution in writing. If the Parties do not resolve the Dispute, the mediator shall provide a written confirmation that the Parties were unable to resolve the Dispute. 19.5 Arbitration

a) Any Party may, within thirty (30) Business Days of the delivery of the mediators confirmation that the Parties were unable to resolve their Dispute, issue a supplementary Dispute Notice requesting arbitration. The Parties shall proceed to arbitration in the manner described in Schedule I (Arbitration), unless the Parties are required by legislation to arbitrate only in a manner otherwise than as described in Schedule I (Arbitration), in which event the Parties shall arbitrate the Dispute as required by such legislation. b) Any determination by arbitration shall be final and binding upon the Parties, and not subject to appeal or challenge, except such limited relief provided under Section 45(1) (Appeal on a question of law, with leave) or Article 46 (Setting aside award) of the Arbitration Act, 1991. 19.6 Performance to Continue

Notwithstanding that a matter has been referred to dispute resolution under the provisions of this Article 19 (Dispute resolution), the Parties shall throughout the period of dispute resolution endeavour to perform their respective obligations under the terms of this Agreement to the best of their abilities.

ARTICLE 20 DEFAULT, ENFORCEMENT AND TERMINATION

20.1 Event of Default

a) Each of the following events is an Event of Default in respect of either a Service Provider, the Ministry, acting on its own behalf or as Agent, as applicable: i) If any representation or warranty made by the Service Provider in this Agreement or any documentation delivered to the Ministry, acting on its own behalf or as Agent, by the Service Provider pursuant hereto shall be materially false or misleading in any respect;

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ii)

If the Service Provider is in default in carrying out any of the material terms, covenants, or obligations of this Agreement to be carried by the Service Provider, including any default in payment by the Service Provider under Section 13.4 (Default in payment by Service Provider) unless disputing such payment pursuant to the Contract; If the Ministry, acting on its own behalf or as Agent, is in default in carrying out any of the material terms, covenants, or obligations of this Agreement to be carried by the Ministry, acting on its own behalf or as Agent; and If any Party or any of their respective advisors, partners, directors, commissioners, officers, Personnel, agents, representatives, or Contractors has breached the requirements of Article 12 (Conflict of interest) and Article 16 (Confidential Information).

iii)

iv)

20.2

Ministry Remedies for Event of Default by Service Provider

Notwithstanding any other rights which the Ministry, acting on its own behalf and as Agent, may have under this Agreement, if an Event of Default by a Service Provider has occurred, the Ministry, acting on its own behalf and as Agent, shall have the following remedies provided that, in the case of an Event of Default which is curable, the Ministry, acting on its own behalf and as Agent, has first given written notice of the Event of Default to the defaulting Service Provider and the defaulting Service Provider has failed to correct the Event of Default within thirty (30) Business Days or such longer period of time as the Ministry, acting on its own behalf and as Agent, may consent in writing: a) The Ministry shall have no further obligation to provide any funding towards any aspect of the Operation that directly relates to the defaulting Service Provider; The Ministry, acting on its own behalf and as Agent, may, at its option, terminate the defaulting Service Providers right to participate in the Operation by giving the defaulting Service Provider at least thirty (30) Business Days prior written notice of the termination date. As of the termination date: i) ii) iii) The defaulting Service Provider shall no longer participate in the GTAFS; The defaulting Service Provider shall no longer be a Service Provider for the purpose of this Agreement; The defaulting Service Provider shall, forthwith, pay to the Ministry, acting on its own behalf and as Agent, any outstanding payment obligations, including any amount due by the Ministry, acting on its

b)

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own behalf and as Agent, acting on behalf of the defaulting Service Provider to the Vendor or any third party in relation to the GTA Fare System; and iv) The defaulting Service Provider shall maintain any ownership interest it may have in any asset that solely forms part of the Municipal System, or the GO Transit System, as applicable, and for which the Service Provider has any right as set out in Article 14 (Assets);

c)

The Ministry, acting on its own behalf and as Agent, will use all means available to it to recover outstanding costs including offsetting or withholding other payments from the Province otherwise payable to the Municipality including but not limited to Gas Tax funds to the Municipality; and Subject to Article 19 (Dispute resolution), the Agent may avail itself of any other legal remedies that may be available to it under law or in equity. Termination for Event of Default by Ministry

d) 20.3

a) If an Event of Default by the Ministry, acting on its own behalf or as Agent, has occurred, as determined by the Executive Committee in accordance with Paragraph 9.8 (a) (ii) (Executive Decisions), a Service Provider shall have the following remedies provided that, in the case of an Event of Default which is curable, as determined by the Executive Committee in accordance with Paragraph 9.8 a) (iii) (Executive Decisions), the Executive Committee shall have first given written notice of the Event of Default to the Ministry, acting on its own behalf and as Agent, and the Ministry, acting on its own behalf and as Agent, has failed to correct the Event of Default within thirty (30) Business Days or such longer period of time as the Executive Committee may approve in writing:The Service Provider may, subject to Section 20.6 (Obligations survive) terminate this Agreement by giving the Ministry, acting on its own behalf and as Agent, at least thirty (30) Business Days prior written notice of the termination date. b) The Ministry, acting on its own behalf and as Agent, shall distribute the proceeds of the sale of the assets acquired through the procurement in respect of the GTA Fare System, if any and subject to Article 14 (Assets), minus any amount due by the Service Providers under this Agreement. Any outstanding payment obligations of the Service Providers, including any amount due by the Ministry, acting on its own behalf and as Agent, on behalf of any of the Service Providers to the Vendor or any third party in relation to the GTA Fare System, remaining as of the date of termination for Event of Default by the Ministry shall remain in effect, due and payable to the Ministry, acting on its own behalf and as Agent. For greater clarity and also subject to Article 14 (Assets), each Party shall only be entitled to the proceeds of any sale, minus any amount due by the Service Providers under this Agreement, in accordance with the percentage legal or

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beneficial, or both, ownership interest in any particular asset it may have and for which it has paid moneys towards that particular asset; c) Subject to Section 20.6, (Obligations survive), as of the date of termination under paragraph (a) above, the Service Providers shall have no further obligation to provide any funding towards any aspect of the Operation in respect of the GTA Fare System; and d) Subject to Article 19 (Dispute resolution), each Service Provider may avail itself of any other legal remedies that may be available to it at law or in equity. 20.4 Termination without cause by the Ministry

The Ministry, acting on its own behalf and as Agent, may terminate this Agreement at any time, without cause, by delivering written notice, in accordance with Article 22 (Notice), to that effect to each Service Provider, which notice shall be effective, if before the end of Launch 3 Completion and with at least one hundred-twenty (120) days or if after Launch 3 Completion and with three hundred sixty-five (365) days, following delivery of the notice by the Ministry, acting on its own behalf and as Agent. Any outstanding payment obligations of the Service Provider, including any amount due by the Ministry, acting on its own behalf and as Agent, on behalf of any of the Service Providers to the Vendor or any third party in relation to the GTA Fare System, remaining as of the date of termination without cause shall remain in effect, due and payable to the Ministry, acting on its own behalf and as Agent. The Ministry, acting on its own behalf and as Agent, shall distribute the proceeds of the sale of the assets acquired through the procurement in respect of the GTA Fare System, if any and subject to Article 14 (Assets), minus any amount due by the Service Providers under this Agreement. For greater clarity and also subject to Article 14 (Assets), each Party shall only be entitled to the proceeds of any sale, minus any amount due by the Service Provider under this Agreement, in accordance with the percentage legal or beneficial, or both, ownership interest in any particular asset it may have and for which it has paid moneys towards that particular asset. 20.5 Termination without cause by a Service Provider

A Service Provider may terminate its participation under this Agreement at any time, without cause, by delivering written notice, in accordance with Article 22 (Notice), to that effect to the other Parties which notice shall be effective, if before the end of Launch 3 Completion and with at least one hundred-twenty (120) days or if after Launch 3 Completion and with three hundred sixty-five (365) days following delivery of the notice by the Service Provider. The appointment of the Service Providers members and their alternates on the Steering Committee and the Executive Committee shall terminate as of the date of the notice. In addition and for greater clarity, despite the Service Providers termination of its participation under this Section 20.5 (Termination without cause by a Service Provider), this Agreement shall remain in full force and effect between the remaining Parties. Any outstanding payment obligations of the Service Provider, including any amount due by the Agent on behalf of the Service Provider to 46 of 82

the Vendor or any third party in relation to the GTA Fare System and damages the Agent or other Service Providers may incur as a result of the Service Providers termination without cause, remaining as of the date of termination without cause, shall remain in effect, due and payable to the Agent and other Service Providers. 20.6 Obligations Survive

Despite a termination under this Article 20 (Default, enforcement and termination), each Party agrees that certain rights and obligations (whether contingent or matured, absolute or not), as set out in Section 23.4 (Survival), of each Party existing immediately before the termination shall survive such termination.

ARTICLE 21 LIABILITY
21.1 Liability

a) Where a category of liability has been limited by the terms of the Contract with the Vendor including but not limited to Article 15 of the MSSA, claims against the Vendor by any of the Parties of this Agreement shall proceed on a first come basis until the limited amount of the liability has been reached. b) Where a Party intends to make a claim against the Vendor in relation to a category of liability which has been limited by the terms of the Contract between the Ministry and the Vendor, and the amount of the limitation in that category of liability has been reached by the accumulation of earlier claims, no claim may be made against any other Party on the sole basis that such Party has entered into the Procurement Governance Agreement and / or this Agreement. c) Each Party acknowledges and agrees that: i) The Vendor's total cumulative liability to the Parties for any claims under the contract between the Ministry and the Vendor shall be as provided in Article 15 of that contract; and ii) Once the Vendor's total cumulative liability under the contract between the Ministry and the Vendor has been exhausted, each Party agrees not to proceed with a claim against the Vendor. d) In no event shall any Party to this Agreement or its respective advisors, agents, appointees and employees, or any member of the Executive Council of Ontario and their advisors and staff be liable for any incidental, indirect, special or consequential damages, or any loss of use, revenue or profit to any other Party, or any of its respective advisors, agents, directors, commissioners, officers,

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Personnel, representatives or Contractors arising out of or in any way related to the Operation. e) Where a Party has been specifically named in a legal proceeding as a defendant, either alone or with any other Party or the Vendor, notwithstanding anything in this Agreement, each named Party(s) shall be responsible for defending the claim. f) Where a category of liability has been limited by the terms of the Contract with the Vendor, third party claims exceeding such amounts shall be the responsibility of the Party upon whose facilities, operations or premises the claim is based.

ARTICLE 22 NOTICE
22.1 Address for Notices

Any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be delivered or sent by registered mail, postage prepaid or facsimile (with follow-up mailed copy unless otherwise specified in this Agreement) to the addresses or facsimile numbers set out in Schedule C (Service Provider information sheet) in respect of each Service Provider kept by the Agent and provided to each Service Provider, and, in the case of the Agent or the Ministry, or both, to: Att.: Project Director GTA Fare System Project GO Transit 20 Bay Street, Suite 600 Toronto, Ontario Canada M5J 2W3 Fax: (416) 869-1794 Changes to the addresses and facsimile numbers may be made in the manner set out in this Section 22.1 (Address for notices). 22.2 Effective Date

Any such notice or other communication shall be deemed to have been given and received, if delivered, on the day of delivery (or, if the day is not a Business Day, on the next following Business Day) or, if mailed, on the second Business Day following the day in which it is mailed. If a strike or lockout of postal employees is in effect or

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generally known to be impending on the date of mailing, any such notice or other communication shall be delivered and not sent by mail. If sent by facsimile before 5:00 p.m. Toronto, Ontario time on a Business Day, the notice or other communication shall be deemed to have been received on that day, and if sent after 5:00 p.m. Toronto, Ontario time on a Business Day, it shall be deemed to have been received on the next Business Day following the date of transmission.

ARTICLE 23 GENERAL
23.1 No Waiver

a) The benefit of any provision of this Agreement may be waived in whole or in part by the Party for whose benefit the provision operates and either Party may waive any or all of its rights in the event of a breach of any provision of this Agreement by the other Party. A waiver is binding on the waiving Party only if it is in writing. A waiver may be absolute or may be limited in any way as to duration or scope. b) The failure by one of the Parties to insist in one or more instances on the performance by the other Party of any of the terms or conditions of this Agreement shall not be construed as a waiver by the Party of its right to require future performance of any such terms or conditions, and the obligations of the other Party with respect to such future performance shall continue to be in full force and effect. 23.2 Force Majeure

a) A Party shall not be responsible for failures in performance due to Force Majeure, as hereinafter defined. b) "Force Majeure" means any circumstance or act beyond the reasonable control of a Party claiming Force Majeure, including an intervening act of God or public enemy, war, blockade, civil commotions, labour stoppages, strikes or lockouts, fire, flood, earthquake, epidemic, quarantine restriction, a stop-work order or injunction issued by a court or public authority having jurisdiction, or governmental embargo, which delays the performance of any obligation created by this Agreement beyond its scheduled time, provided such circumstance or act is not expressly dealt with under this Agreement or does not arise by reason of: i) the negligence or wilful misconduct of the Party claiming Force Majeure or those for whom it is responsible at law;

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ii)

any act or omission by the Party claiming Force Majeure (or those for whom it is responsible at law) in breach of the provisions of this Agreement; and lack or insufficiency of funds or failure to make payment of monies;

iii)

c) Provided further that, in the case of an event of Force Majeure, the Party affected thereby shall notify the other Party and the Ministry, acting on its own and as Agent, if the Ministry, acting on its own behalf and as Agent, is not the other Party, as soon as possible and in any event within five (5) Business Days following the date upon which the affected Party first becomes aware (or should have been aware, using all reasonable due diligence) of such event so that the other Party may verify same. 23.3 Remedies Cumulative

All remedies, rights, undertakings, obligations and agreements of the Parties by law or under this Agreement or otherwise shall be cumulative, and none thereof shall be in limitation of any other remedy, right, undertaking, obligation or agreement of any Party. Each Party may follow any remedy to which it is entitled by law or under this Agreement or otherwise concurrently or successively, at its option. 23.4 Survival

Articles 12 (Conflict of interest), 14 (Assets), 16 (Confidential Information), 20 (Default, enforcement and termination), and 21 (Liability) shall survive the expiration or termination of this Agreement. 23.5 Amendment

Except as expressly provided herein, this Agreement may be amended or modified only by an instrument in writing executed by each of the Parties, which will form part of the Agreement. 23.6 a) No Assignment Except as otherwise provided in this Agreement, including Article 3 (Change in Ministrys participation & successor(s)), the Ministry, acting on its own behalf and as Agent, shall not dispose of the whole or any part of its rights or obligations under this Agreement without the approval of the Executive Committee, in accordance with the provisions in Paragraph 9.8 (a)(i) (Executive Decisions). No Service Provider shall dispose of the whole or any part of its rights or obligations under this Agreement without the express written consent of the Ministry, acting on its own behalf and as Agent, which consent shall not be unreasonably withheld.

b)

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23.7

Further Action

Each Party shall at all times promptly execute and deliver and cause to be executed and delivered such documents and take and cause to be taken such action as may be necessary or appropriate to give effect to the provisions of this Agreement. 23.8 Enurement

This Agreement shall enure to the benefit of and be binding upon each Party and their respective successors and permitted assigns. 23.9 Time of the Essence

In the performance and observance of the terms and conditions of this Agreement, time is of the essence and no extension or variation of this Agreement shall operate as a waiver of this provision. 23.10 Counterparts This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original, and all such counterparts shall together constitute one and the same instrument. All signatures of the Parties to and pursuant to this Agreement may be transmitted by facsimile and such facsimile shall for all purposes be deemed to be the original signature of the person whose signature it produces and shall be binding upon that person and on the Party on whose behalf that person signed. 23.11 Gas Tax a) Each Municipality will have demonstrated its participation in the GTA Fare Card project as required in the 2005/06 Guidelines & Requirements of the Dedicated Gas Tax Funds for Public Transportation Program by having entered into this Agreement. b) Each Municipality shall continue to be in good financial standing with respect to the Gas Tax guidelines as defined for 2005/06 and as modified from time to time with respect to the GTAFS. If a Municipality is not in good financial standing, its participation in the GTAFS is subject to Paragraph 20.1 (a)(i) (Event of Default). c) Where the City of Hamilton ceases to be in good standing with respect to the Gas Tax guidelines as defined in 2005/06 and as modified from time to time, the participation of the HSR is subject to Paragraph 20.1 (a)(i) (Event of Default).

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IN WITNESS WHEREOF, the Ministry and each of the Service Providers have respectively executed and delivered this Agreement as of the date set out above. Date:___________________ HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, represented by the Minister of Transportation for the Province of Ontario Per: _____________________________ Name: Title: Minister

Date: ____________________

GREATER TORONTO TRANSIT AUTHORITY Per: _______________________ ______ Name: Title: Managing Director and Chief Executive Officer Per: ____________________________

Name: Title: Secretary We have the authority to bind the corporation. Date: ____________________ THE CORPORATION OF THE CITY OF MISSISSAUGA Per: ____________________________ Name: Title: Mayor

Per:

____________________________ Name: Title: Clerk

We have the authority to bind the corporation.

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Date: ____________________

THE HAMILTON STREET RAILWAY COMPANY Per: ____________________________ Name: Title: Mayor

Per:

____________________________ Name: Title: Clerk

We have the authority to bind the corporation. Date: ____________________ THE REGIONAL MUNICIPALITY OF YORK Per: ____________________________ Name: Title: Regional Chair Per: ____________________________ Name: Title: Regional Clerk We have the authority to bind the corporation. Date: ____________________ THE CORPORATION OF THE CITY OF BURLINGTON Per: ____________________________ Name: Title: Mayor Per: ____________________________ Name: Title: Clerk We have the authority to bind the corporation.

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Date: ____________________

THE CORPORATION OF THE CITY OF BRAMPTON Per: ____________________________ Name: Title: Mayor

Per:

____________________________ Name: Title: Clerk

We have the authority to bind the corporation. Date: ____________________ THE CORPORATION OF THE TOWN OF OAKVILLE Per: ____________________________ Name: Title: Mayor

Per:

____________________________ Name: Title: Clerk

We have the authority to bind the corporation. Date: ____________________ THE REGIONAL MUNICIPALITY OF DURHAM Per: ____________________________ Name: Title: Regional Chair ____________________________ Name: Title: Clerk We have the authority to bind the corporation.

Per:

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SCHEDULE A DESCRIPTION OF GTA FARE SYSTEM AND RELATED COMPONENTS FOR THE OPERATING AGREEMENT
1. GTA Fare System The GTA Fare System will include a GTA fare card allowing customers to ride on any participating GTA transit system without knowing the fare policies of each transit system in advance. The GTA fare card will be a credit card sized plastic card with an embedded computer chip and an antenna for contactless communication, that can be programmed to store transit fare payment options and other information required for fare collection. The common currency for fare payment will be an electronic purse (epurse). The e-purse is the electronic version of cash that can provide full fare payment interoperability on the Municipal Systems, the TTC Initial System and GO Transit System. In addition, the e-purse: 1) can provide for the development of more flexible and market driven fare policies that could be implemented through a customer loyalty program; 2) could allow Service Providers to reduce the proportion of fares paid by cash; and 3) could replace existing paper fare payment options (tickets, passes, etc.). The following is a schematic of the high level architecture of the GTA Fare System:

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2.

Central System

The Central System will be the link to all of the Municipal Systems, the TTC Initial System, when implemented, and the GO Transit System, acquiring all fare card transaction data, holding e-purse value in a separate bank account and disbursing funds to each Service Provider on a daily basis, providing customer fare card support services and central technical support. The Central System will be a secure network of servers and appropriate networking equipment, designed to provide services seven (7) days a week and twenty-four (24) hours per day. The Ministry shall own and be responsible for the Central System operation. 3. Municipal Systems

In addition to the Central System, Municipal Systems will be operated for each Municipality, except the City of Toronto/TTC. The Municipal Systems will include but not be limited to the on-board, off-board and back office equipment and software to accommodate and administer the fare cards. This includes fare card readers that read and deduct the appropriate fare when the contactless card is placed in the vicinity of the reader. At the end of each day, when the bus returns to its base depot, these devices will transmit their data by wireless means to a depot computer that will store the data from each bus until it is uploaded to the Central System. The Municipal Systems will also include point of sales devices at designated locations (including third party locations) to allow customers to purchase and load value onto their fare cards. The Municipal Systems may include devices, equipment and services to operate proof of payment process and bus rapid transit systems as a component of the Municipal System. 4. GO Transit System

The GO Transit System will consist of the on-board, in-station and back office equipment and software for GO Transit rail and bus services. The GO Transit System will provide the same functions as the Municipal Systems, but in the GO Transit operating environment. Besides the units aboard its buses (similar to the Municipal Systems) GO Transit will have units at each of its rail stations for fare card transactions. GO Transit enforcement officers will also use handheld devices to verify fare payment on board its trains as a continuation of its proof of payment program. The GO Transit Systems will also include point of sales devices at designated locations (including third party locations) to allow customers to purchase and load added value onto their fare cards.

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SCHEDULE B OPERATING COST COMPONENTS AND FUNDING RESPONSIBILITIES

1. Operating Costs for GTAFS

There are two operating components to the GTAFS. The first component is the operation of the Central System that is a Ministry responsibility. Subject to Section 13.1 (Ministry funding contribution) of the Agreement, the Ministry, or a Successor, shall contribute 100% of Central System Operating Costs. The second component is the Centrally Managed Services that are currently provided locally but in future will be managed centrally for local benefit. The Service Providers, subject to Section 13.2 (Service Provider funding contribution), shall pay 100% of the Operating Costs of the Centrally Managed Services to the Vendor or its delegate set out in Table 1, Operating Costs for GTAFS, below. For greater certainty, cost categories are defined in the RFP Pricing sheets that are part of the Contract. Table 1: Operating Costs for GTAFS (as defined and presented in the RFP pricing sheets) Centrally Managed Services (Service Providers) Costs: 8.0 Equipment Technical Support Charges for Services Providers 9.0 Third Party Agency Network Management Services 9.1 New Agent One Time Set-up Fees 9.2 Management of the Contract with Each Third Party Agency (for years 3, 4 & 5) 9.3 Delivery of Support Services to Third Party Agencies (for years 3, 4 & 5) 9.4 Management of the Contract with Each Third Party Agency (for years 6 to 10) 9.5 Delivery of Support Services to Third Party Agencies (for years 6 to 10)

Central System (Ministry) Costs: 6.0 Central System Operations Services 6.1 Managing and Supporting the Delivery of Core Central System Functions 6.2 Variable Cost Portions 6.3 GTAFS Website and Related Services 6.4 GTAFS Customer Services and Related Services 6.5 Transition and Succession Planning and Execution 7.0 Technical Support Services Central System 7.1 Commercial Off The Shelf Software Maintenance 7.2 Technical Support-Central System 7.3 Escrow Charges 7.5 Business Continuity/Disaster Recovery Services 10.0 Fare Card Charges (TBD)

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SCHEDULE "C" SERVICE PROVIDER INFORMATION SHEET

1. Legal Name of Organization

______________________________________________ 2. a. Contact Information Mailing address and fax number for notices:

______________________________________________ ______________________________________________ ______________________________________________ ______________________________________________ ______________________________________________ Fax: __________________________________________ b. i. Title: Address: Representatives on committees: Executive Committee Member _________________________ _________________________ Alternate Executive Committee Member ________________________________ ________________________________ ________________________________ ________________________________

Telephone #: _________________________ Fax #: _________________________

E-mail address:

____________________ _______________________________

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ii. Title: Address:

Steering Committee Member _________________________ _________________________

Alternate Steering Committee Member ________________________________ ________________________________

Telephone #: _________________________ ________________________________ Fax #: _________________________ ________________________________

E-mail address:

____________________ _______________________________

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SCHEDULE "D" SAMPLE COUNCIL/BOARD/COMMISSION BY-LAW/RESOLUTION

The Council/Board/Commission for _______________________________________ ___________________________________________________________ hereby authorizes the future signing by the Ministry of Transportation______________________, (authorized agent) __________________________________________________ of a (title of agent) GTA Fare System Operating Agreement (the Agreement) for the purpose of providing for the Operation and use of a GTA Fare System and other items as necessary to provide for [!], including, but not limited to[!], as deemed necessary by each individual Party. In addition, the Council/Board/Commission authorizes _________________ (title of Steering Committee Member) and _________________ (title of Executive Committee Member) to perform any action, and provide any required recommendations, instructions and approvals to complete the Operation within the scope of the Agreement, and to appoint alternate members to the Steering Committee and Executive Committee to perform the above in their absence. This By-law/Resolution was adopted by the Council/ Board/Commission of ___________________________________________________ Name of legal entity on __________________________, 2006. _______________________________________ Member of Council/Governing Board/Commission _______________________________________ Member of Council/Governing Board/Commission

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SCHEDULE E CONFIDENTIALITY REQUIREMENTS

All capitalized terms herein shall have the meanings ascribed to them in the GTA Fare System Operating Agreement, unless otherwise specifically defined herein. 1. Each Party shall maintain the absolute confidentiality of all Confidential Information, and, except as expressly permitted herein, shall not directly or indirectly copy, distribute, disclose, use or allow access to, the Confidential Information, or obtain any benefit from the Confidential Information or permit anyone to do any of these things. Each Party agrees not to disclose any of the Confidential Information to any person for any reason whatsoever other than to those employees, consultants and professional advisors who actually need to have knowledge of the Confidential Information for the purpose of facilitating the Partys participation in the Project (as defined below). In this event, the Party shall disclose such part of the Confidential Information to those employees, consultants and professional advisors as is reasonably necessary. Prior to disclosure, however, the Party shall issue appropriate directions to those employees, consultants and professional advisors to whom it proposes to lawfully disclose the Confidential Information to satisfy the Partys obligations herein, and, where appropriate, acting reasonably, shall obtain an agreement in writing from each of its employees to treat the Confidential Information as confidential and to deal with conflict of interest. Each Party shall obtain an agreement in writing from all above referenced consultants and professional advisors to treat the Confidential Information as confidential and to otherwise observe the restrictions in this Schedule E (Confidentiality requirements), including those pertaining to conflict of interest. Each Party shall be responsible and liable for any breach of the confidentiality obligations herein by any person or entity to whom it discloses Confidential Information. 2. Each Party shall maintain the security and integrity of any Confidential Information in the possession or control of the Party, and shall keep such Confidential Information in a physically secure location to which access is restricted. Each Party shall use measures to protect the Confidential Information which are no less stringent than the measures used to protect its information of a confidential nature. Each Party shall not have, or acquire, any right, title or interest, including intellectual property rights, in such Confidential Information. 3. Each Party acknowledges that all other Parties have disclosed Confidential Information to each other solely in connection with assisting, advising and/or operating the GTA Fare System Project (the Authorized Purpose and Project respectively). Each Party may use the Confidential Information solely in connection with the Authorized Purpose and for no other purpose. Each Party acknowledges and agrees that unauthorized dealings with the Confidential Information would be detrimental to the interests, business and affairs of the other Parties (or third parties with respect to third party information), including the integrity of the Project.

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4. On expiration or termination of the each Partys participation in the Project, or anytime upon the request of another Party, each Party agrees to ensure all copies and partial copies of any Confidential Information (in any form or media) in the Each Partys possession or control are returned to the Party providing the Confidential Information. 5. Each Party declares that there is no actual or potential conflict of interest arising out of the receipt of the Confidential Information or the Partys role on the Project. Each Party declares that it will immediately disclose any actual or potential conflict of interest that may arise during the course of participating in the Project. Furthermore, each Party acknowledges and agrees that it, its employees, consultants and professional advisors who are participating in or involved with the Project and who at any time are in receipt of Confidential Information are precluded from participating in any activity with any third party, including any third party responding to a Project solicitation document in respect of the Project, whether as an employee, advisor or otherwise, which will constitute an actual or potential conflict of interest for a period of one (1) year from (i) the execution of the agreement(s) with the successful vendor resulting from the Request for Proposals process or (ii) the final abandonment or cancellation of the Request for Proposals by the Ministry. Prior to engaging any consultant or professional advisors on the Project, each Party shall obtain a declaration and agreement in respect of actual or potential conflict of interest from each of those consultants and professional advisors which shall contain the restrictions set out in this Section 5. 6. No delay or failure by any Party in exercising any rights, powers, remedies or privileges available to it hereunder shall operate as a waiver thereof. The single or partial exercise of a right, power, remedy or privilege shall not preclude its subsequent exercise or the exercise of any other right, power, remedy or privilege. If any provision of this Schedule E (Confidentiality requirement) is invalid, unenforceable or illegal, such provision shall be deemed to be severed without affecting any other provision. 7. Subject to any confidentiality obligations pertaining to third party materials, the confidentiality obligations herein shall survive for a period of the greater of ten (10) years from the Effective Date and the term of any agreement with the successful vendor resulting from the Request for Proposals process relating to the Project, including any renewal periods. For avoidance of doubt, if the confidentiality obligations pertaining to third party materials survive for a longer period of time as stipulated by the relevant third party, then that longer period of time will govern. In the event responsibility for the Project is transferred from the Ministry to another person or entity, the provisions herein relating to the Ministry shall enure to the benefit of such person or entity. The provisions herein enure to the benefit of any successors and assigns of the Ministry. 8. The provisions set out above shall be subject to the provisions of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as amended, and the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M. 56, as amended, as applicable.

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SCHEDULE F DATA RIGHTS

1. General

Personal information supplied by cardholders when they register their fare cards and load payment information data shall be owned by the cardholder that supplied this information. Part 9 Business Rules and the GTA Fare System Operating Agreement between the Service Providers and the Ministry shall govern data rights and data access in compliance with FIPPA and MFIPPA. Data or reports shall be provided from the Central System to the Ministry, Service Providers, and Third Party Agencies. Executive Committee shall establish policies for accessing and distributing data and reports to any other persons. Summary operating data of the overall GTAFS shall be available to all Parties under policies set by Executive Committee. The provisions set out in this Schedule F (Data rights) shall be subject to the provisions of the FIPPA and the MFIPPA as applicable. A privacy policy will be developed for the GTAFS that will govern the ongoing collection, use, access and disclosure of information for all Parties. This policy will be approved by Executive Committee. 2. Service Providers

Fare payment transaction data shall be owned by the Service Provider on whose transit system the transaction data was generated. Service Providers shall be able to access all the load and fare payment transaction data that was generated by devices installed on their facilities, property or vehicles. Service Providers will also be able to access all transaction data generated by its respective Third Party Agency network. Service Providers shall not have access to data generated on another Service Providers transit system except with the express approval of the Service Provider whose data has been requested, and for inter-Service Provider transfer data. If there is a need to access data generated on another Service Providers system (such as inter-Service Provider transfers) then access to that data shall be provided in accordance with Part 9 Business Rules and agreements between the affected Service Providers and the Ministry. Service Providers may access reports that include information generated by the Central System (such as autoload and requested revaluing initiated on the GTA website or the GTA call centre), subject to agreement with Ministry.

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Service Providers may provide operating data specific to their operations to other persons without Executive Committee approval. Service Providers shall comply with Schedule E (Confidentiality requirements) and ensure their employees are aware of these requirements when handling Confidential Information including making their employees aware of the requirements of FIPPA and MFIPPA and the importance of maintaining the privacy and security of personal information. 3. Ministry

The Ministry shall have access to all data stored in Central System databases, including fare card registration databases. The Ministry shall own all data on the Central System except for the data owned by the Cardholders and Service Providers. Ministry has overall accountability for customer information records in accordance with FIPPA and MFIPPA to maintain the privacy and security of customer personal information. 4. Third Party Agencies

Data rights for Third Party Agencies are defined in Part 9 Business Rules, section 34.5.

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SCHEDULE G COMMUNICATION REQUIREMENTS

1. Purpose

This Schedule G (Communication Requirements) describes each Partys responsibilities and financial obligations involved in public information material, media releases, media conferences, public announcements, other joint events and where deemed appropriate for signs and plaques for the GTA Fare System on each Service Providers system. 2. General

a) Each Service Provider and the Ministry agree to undertake joint communications activities and products that will promote opportunities to communicate with the public in an open, transparent, effective and proactive manner, using appropriate, ongoing, consistent public information material acknowledging the Parties participation as set out in this Agreement. b) The Parties shall identify appropriate forms for these communications and public information activities and products, budget, and require Executive Committee approval on these matters. c) Public communication material in relation to this Agreement shall be prepared in both official languages in accordance with the French Language Services Act (Ontario), and shall equitably reflect the contributions of the Parties and, where applicable, any third party. This includes ensuring equal recognition and prominence where words, logos, symbols and other types of identification are incorporated into the materials. d) If the Ministry deems appropriate, all public communication material or signage related to the GTA Fare System shall be produced in accordance with the Ontario visual identity guidelines (see Attachment -1A (Ontario visual identity guidelines) to this Schedule G (Communications Requirements)). e) Each Service Provider shall ensure all public communications related to this Schedule shall be in a form approved by the Ministry. All notices and announcements shall note the contributions by each of the Parties. f) This Schedule G (Communication Requirements) shall not apply to communications activities by a Service Provider or its Contractors if they relate to the operating, transportation management or safety activities that result from the GTA Fare System.

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3.

Communication with Third Parties

All public communication material produced according to this schedule for Operation of the GTA Fare System shall clearly and prominently indicate that the GTA Fare System received financial assistance from the Government of Ontario. 4. Communication with the Public

Public information material a) The Parties may produce information kits, brochures, public reports, and Internet pages providing information for transit agencies, municipalities, contractors and members of the public on this Agreement. The Parties shall agree on the content of that information. Unless agreed to in advance by the Parties, the Party producing such public information material shall give the other Parties reasonable notice of fourteen (14) days prior to printing or posting electronically. Media releases b) The Parties may organize a signing ceremony and a media release shall be issued when the Agreement is signed. A joint media release, in which each of the Parties is assigned equal importance, shall be issued in respect of each Service Provider commencement of revenue service operations or in combination with other project phases, unless a Service Provider and the Ministry otherwise decide by mutual agreement. Media releases may include quotations from elected representatives of the Government of Ontario, participating municipalities, or members of the board of directors of GO Transit. The Parties shall agree on the content of the media related products. Media conferences, public announcements and other joint events c) The Parties shall co-operate in organizing media conferences, announcements and official ceremonies and shall respect the mutually agreed order of precedence. In addition, the Parties must agree on the public statements and messages issued at these events. The Executive Committee may recommend to the Parties that ceremonies or other special events be held at appropriate locations and times. Unless agreed to in advance by the Parties, no public announcement concerning a project component covered by this Agreement shall be made by a Party or, where applicable, unless the other Party has been given at least fourteen (14) days notice of the public announcement. d) A Party may organize a joint media conference, public ceremony or other event pertaining to the GTA Fare System. Unless agreed to in advance by the Parties, the Party that does so shall give the Ministry reasonable notice of fourteen (14) days, and such notice shall also be given in respect of other joint events or public 66 of 82

announcements. The Ontario Minister of Transportation may participate in these events, which shall be held at the agreed locations and on agreed dates. Signage e) Signs and plaques are required, unless a Service Provider and the Ministry otherwise decide by mutual agreement, and the following conditions will apply. i) Prior to the implementation of any project component under this Agreement a sign measuring not less than 120 cm high by 240cm (4 feet x 8 feet) visible by rail transit users and where practicable, road users, for the duration of the component implementation at the site. Signage shall be consistent with Ontario visual identity guidelines (see Attachment -1A (Ontario visual identity guidelines) to this Schedule G (Communications Requirements)) and in both official languages in accordance with the French Language Services Act (Ontario). Each Service Provider shall ensure that the proofs of all GTA Fare System signs and plaques are reviewed by the Ministry before installation. If deemed appropriate by the Ministry, each Service Provider is responsible for erecting project signs indicating all financial assistance received from the Ministry, municipal contribution and other parties making a significant contribution toward the GTA Fare System at all sites, facilities, etc. where such financial assistance is being used.

ii)

iii) iv)

5.

Eligible Costs a) In order for a cost to be considered an eligible cost for the purposes of this Schedule G (Communication Requirements), the Ministry must pre-approve the budget for communication activities and products in accordance with this Agreement. For media conferences, public announcements and other joint events as anticipated under Section 4 (c), the Ministry may fund a maximum of up to three thousand dollars ($3000) of eligible costs. b) Unless otherwise arranged by the Parties, the Service Provider(s) and the Ministry shall equally share eligible costs of special joint events, signage and media releases as agreed by both Parties subject to the limit of the Ministry contribution in paragraph 5(a) above. c) The costs of joint events and official ceremonies are eligible costs. Eligible costs include the following: i) Printing and mailing invitations;

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ii) iii) iv) v) vi)

Refreshments*; Draping for plaque unveiling; Project material for display and/or media kit; Temporary or permanent signage; and Vendor services for logistics including rentals such as flag poles; stage/platform; chairs; podium; and public address system.

* Only light refreshments such as coffee, tea, donuts, muffins will be considered eligible costs. The other costs incurred by the Parties to organize these events shall be paid by them as agreed to by the Parties. d) Each Party is responsible for its own costs with respect to public information material unless agreed otherwise by the Parties.

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ATTACHMENT -1A TO SCHEDULE G ONTARIO VISUAL IDENTITY GUIDELINES

If the Ministry deems appropriate, the following Ontario visual identity guidelines, or any other mutually agreeable visual identity guidelines shall be installed and maintained by each Service Provider as per Section 2 (d) and Paragraph 4 (e) (ii) of Schedule G (Communication Requirements). Examples: Exterior recognition stickers approximate size 3 X 8

Interior recognition stickers approximate size 4 X 12

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SCHEDULE H MEDIATION
[In the event of a dispute being referred to mediation under Section 19.4 (Mediation) of the Agreement, the mediation shall be undertaken under the authority of a mediation agreement substantially in accordance with the following:] All references to number of days in this Schedule H (Mediation) shall be interpreted consistent with Rule 3 (Time) of the Rules of Civil Procedure under the Courts of Justice Act, R.R.O. 1990, Regulation 194. WHEREAS: The Parties are involved in a Dispute (Dispute and Parties, as defined in Section 1.1 (Definitions) of the GTA Fare System Operating Agreement made as of [?] between the Ministry, acting on its own behalf and as Agent, Municipalities, and GO Transit) and wish to attempt to resolve the Dispute through mediation; and The Parties wish to retain the services of a Mediator (as defined in Section 1 (Preamble) to this Schedule H (Mediation)) to act fairly and impartially in all respects and to expeditiously assist in the resolution of the Dispute. NOW THEREFORE IN CONSIDERATION of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties covenant and agree as follows: 1. Preamble

The Parties agree to conduct this mediation in an honest and forthright manner and to make a serious attempt to resolve the outstanding matters relating to the Dispute. The Parties agree to use their best efforts to isolate points of agreement and disagreement, to explore alternative solutions or options and to consider compromises or accommodations. The [name of organization and/or mediator providing mediation services] will provide the services of a qualified and experienced individual (the Mediator), satisfactory to the Parties and their respective counsel in connection with the Dispute.

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2.

Mediator

The appointed Mediator shall sign a statement verifying the Mediator has no interest in the case, and the Mediator is not aware of any circumstances that could raise the likelihood of a claim or bias. 3. Authority

The representative of the Parties who participates in the mediation shall have full, unqualified authority to reach a settlement in the Dispute. 4. Time and place of mediation

Unless otherwise agreed, the mediation shall commence no later than fifteen (15) days after the appointment of the Mediator at a place to be determined by the Mediator. 5. Pre-conference preparation

Each Party shall prepare a brief summary, not to exceed ten (10) pages, of the issues in dispute, with the Partys position with respect to those issues. The summary shall be delivered to the Mediator and the other Parties, at least three (3) days before the first mediation conference. 6. Process

At the mediation, each Party should be prepared to make a brief oral statement explaining the Partys position. Each Party is expected to participate in structured negotiations with the active assistance of the Mediator. The Mediator may caucus privately with any Party during the mediation conference if the Mediator considers it will assist the process. Any Party may request a private caucus with the Mediator at any time. Each Party shall co-operate in good faith with the Mediator. Each Party shall make every effort to attend a scheduled conference and shall cooperate to avoid any unnecessary delays. 7. 8. This Section is intentionally deleted. Presentation

Although oral evidence, other than that of the Parties to the dispute, is not encouraged at the mediation, the Mediator may allow other persons other than the Parties to make presentations. 71 of 82

9.

Representation

A Party may be represented at the mediation by counsel or another representative. 10. Resort to other proceeding

Unless it is necessary for a Party to initiate or continue arbitral or judicial proceedings to preserve the Partys rights, no Party shall initiate or continue any arbitral or judicial proceedings in respect of any of the matters in the dispute that is the subject matter of the mediation, before or during the mediation process. 11. Record

No transcript shall be kept of the mediation. 12. Confidentiality

The Mediator, the Parties and their counsel or representatives shall keep confidential all matters relating to the mediation, except where disclosure of a settlement agreement is necessary to implement or enforce that agreement. 13. Adjournment

The Mediator may adjourn or cancel the mediation at any time. 14. Withdrawal

Subject to Section 1 (Preamble) of this Schedule H (Mediation), either party may withdraw from the mediation at any time. 15. Settlement agreement

When the parties reach a settlement, the Parties shall reduce the agreement to writing. 16. Without prejudice proceeding

In all respects, the mediation is deemed to be a without prejudice proceeding. 17. Experts

After consultation with the Parties, the Mediator may appoint any legal or technical expert the Mediator considers necessary to assist in the performance of the Mediators duties. The fees and costs of appointing any experts will be borne equally by the Parties. The Mediator will impose a confidentiality obligation on all experts which is identical to that imposed on the Mediator under this Agreement.

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The responsibilities of the Mediator will not be allocated to an expert or any other person. The Mediator will direct an expert to give his or her advice or report, in writing, to the Mediator along with copies for each of the Parties. The Parties may each give the Mediator a written response to the advice or report given by the expert. 18. Costs of the mediation

The costs of the Mediator shall be apportioned equally between the Parties unless otherwise agreed under any settlement reached under Section 15 (Settlement agreement) of this Schedule H (Mediation). IN WITNESS WHEREOF the Parties hereto have executed this Agreement.

l Per: Per: Per: Per:

l [the Mediator] Per: Per:

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SCHEDULE I ARBITRATION
All references to number of days in this Schedule I (Arbitration) shall be interpreted consistent with Rule 3 (Time) of the Rules of Civil Procedure under the Courts of Justice Act, R.R.O. 1990, Regulation 194. Jurisdiction and Scope 1. The Arbitral Tribunal (as defined in Section 5 (Appointment of Arbitral Tribunal) to this Schedule I (Arbitration) appointed under these rules will apply the provisions of the Arbitration Act, 1991 of Ontario to any arbitration conducted under the Agreement except to the extent they are modified by the express provisions of these rules. 2. Each Party agrees: (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 the award of the Arbitral Tribunal will be final and conclusive and there will be no appeal there from whatsoever to any court, tribunal or other authority.

(b)

3.

The Arbitral Tribunal has the jurisdiction to deal with all matters relating to a Dispute including, without limitation, the jurisdiction: (a) (b) (c) (d) (e) to determine any question of law, including equity; to determine any question of fact, including questions of good faith, dishonesty or fraud; to determine any question as to the Arbitral Tribunals jurisdiction; to order any party to furnish further details, whether factual or legal, of that Partys case; to proceed in the arbitration notwithstanding the failure or refusal of any Party to comply with these rules or with the Arbitral Tribunals 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; 74 of 82

(f)

(g) (h)

to make one or more interim awards including, without limitation, orders to secure any amount relating to the Dispute; to order the Parties to produce to the Arbitral Tribunal and to each other for inspection, and to supply copies of any documents or classes of documents in their possession, power or control that the Arbitral Tribunal determines to be relevant; and to express awards in any currency.

(i)

Place of arbitration 4. Unless otherwise agreed, the arbitration will be conducted in the City of Toronto in the Province of Ontario at the location determined from time to time by the Arbitral Tribunal, but the Arbitral Tribunal may meet in any other place the Arbitral Tribunal considers necessary for consultation, to hear witnesses, experts or other parties, or for the inspection of documents, goods or other property. Appointment of Arbitral Tribunal 5. As used in these rules, the term Arbitral Tribunal means the Sole Arbitrator appointed under Section 7 (Appointment of Arbitral Tribunal) of this Schedule I (Arbitration) or the Arbitral Tribunal appointed under Section 8 (Appointment of Arbitral Tribunal) of this Schedule I (Arbitration), as the case may be. 6. The arbitration will be commenced by delivery of a written complaint (the Complaint) by the claimant to the respondent. The Complaint must describe the nature of the Dispute. 7. The claimant and the respondent 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 fifteen (15) days of the giving of the Complaint, the claimant and the respondent do not reach agreement on the appointment of the Sole Arbitrator, then each of the claimant and the respondent may appoint an Arbitrator and provide the other Party with written notice of such appointment. If one Party does not provide such written notice, then the arbitrator who has been appointed by the other Party will be the Sole Arbitrator and will constitute the Arbitral Tribunal. 8. If the claimant and the respondent each appoint an Arbitrator under Section 7 (Appointment of Arbitral Tribunal) of this Schedule I (Arbitration), then, within five (5) days of the appointment of such Arbitrators, the Arbitrators so appointed will agree on the appointment of an additional Arbitrator as chair (the Chair) and give notice to the claimant and the respondent of such appointment, failing which the Chair may be appointed by a Judge of the Ontario Superior Court of Justice on the application of

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either the claimant or the respondent, on notice to the other. Upon the giving notice by the Arbitrators of the appointment of the Chair, or the appointment by a Judge of the Chair, as the case may be, the Chair and the other Arbitrators previously appointed shall 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, shall be rendered in writing, and contain a recital of the facts upon which the decision is made and the reasons. Pre-Arbitration meeting 10. The Parties shall meet with the Arbitral Tribunal within thirty (30) days of the constitution of the Arbitral Tribunal for a pre-arbitration meeting to: (a) (b) (c) (d) identify the issues in dispute; discuss the procedure to be followed in the arbitration; establish time periods for taking certain steps, including the dates, time and location of the arbitration; and 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 agreement 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 representatives. 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 I (Arbitration), 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;

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(b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n)

controlling or refusing discovery examinations; determining in what order issues will be dealt with; limiting or extending the extent of document disclosure; requiring further particulars of the claim and the issues advanced; requiring earlier disclosure of intended witnesses and documents; limiting the number of experts or refusing to allow expert evidence; requiring the use of a single independent expert to deal with a particular issue or any number of issues; requiring experts to file written reports in place of giving oral testimony; requiring expert reports earlier in the process than required under this Schedule I (Arbitration); determining when and in what order experts will be heard; setting the dates, times and locations for the Arbitration; ordering pre-arbitration meetings as required; and fixing and awarding costs, including solicitor/client costs and the costs of the Arbitration.

Exchange 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 shall send a written statement to the respondent and the Arbitral Tribunal outlining the facts supporting the claim of the claimant, the points at issue, and the relief or remedy sought. 16. Within fifteen (15) days after the respondent receives the claimants statement, the respondent shall send a written statement to the claimant and the Arbitral Tribunal outlining the respondents defence, the facts supporting the defence, the respondents positions on the points at issue and the relief or remedy sought, and a written statement of the respondents counterclaim, if any. 17. The respondent, by counterclaim, shall send a written statement to the claimant and the Arbitral Tribunal outlining the respondents defence to the counterclaim within fifteen (15) days after the respondent receives the counterclaim.

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18. Each Party shall submit with the Partys 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 allow a Party to amend or supplement the Partys claim or counterclaim or defence during the course of the arbitration unless the Arbitral Tribunal considers the delay in amending or supplementing the claim to be prejudicial to the other Party. Production of documents 20. The Arbitral Tribunal may, on application of a Party or on the Arbitral Tribunals 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. 21. Each Party shall make available to the other Party for inspection and copying any documents upon which the Party intends to rely. Agreed 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 in dispute and submit to the Arbitral Tribunal an agreed statement of facts. Arbitration hearings 23. The Arbitral Tribunal shall set the dates for any oral hearings or meetings and shall give at least fifteen (15) fifteen 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 shall not disclose the written documentation to any other person, except by the consent of all Parties. Evidence 25. Each Party shall prove the facts relied upon to support the Partys 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

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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 or the oral hearing. 28. The Arbitral Tribunal shall be the sole judge of the relevance and materiality of the evidence offered and the Arbitral Tribunal is not required to apply the legal rules of evidence. 29. All oral evidence shall be taken in the presence of the Arbitral Tribunal and all the Parties, except where any of the Parties is absent, in default or has waived the right to be present. 30. The Parties shall prepare books containing all of the documents to be introduced at the oral hearing and shall submit those books to the other party and to the Arbitral Tribunal no later than seven (7) days before the commencement of the oral hearing. 31. The Parties are deemed to have consented to the authenticity of all documents contained in the document books, unless the Party gives notice of objection within three (3) days before the oral hearing to the other Party and the Arbitral Tribunal. 32. The Arbitral Tribunal may allow a party to introduce into evidence at the oral hearing a document which was not disclosed or submitted at least seven (7) days before the commencement of the hearing, but the Arbitral Tribunal may take that failure into account at the time the Arbitral Tribunal fixes any costs. Examination of Parties 33. At an oral hearing the Arbitral Tribunal may order a Party, or a person claiming through a Party, to submit to being examined by the Arbitral Tribunal under oath and to submit all the documents that the Arbitral Tribunal requires. Witnesses 34. The Arbitral Tribunal may determine the manner in which witnesses are to be examined and may require a witness, other than a Party or the Partys representative, to leave the oral hearing during the testimony of another witness. 35. Where the Arbitral Tribunal allows the evidence of a witness to be presented by a written statement, the other Party may require that the witness be present at an oral hearing for cross-examination.

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36. The Arbitral Tribunal may call a witness on the motion of the Arbitral Tribunal, but where a witness is called by the Arbitral Tribunal, the Parties have the right to crossexamine that witness and call evidence in rebuttal. Experts 37. The Arbitral Tribunal may appoint one (1) or more experts to report on specific issues to be determined by the Arbitral Tribunal and may require a Party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for inspection by the expert. 38. The Arbitral Tribunal shall communicate the experts terms of reference to the Parties. 39. Any dispute between a Party and an expert as to the relevance of the required information or the production of the information shall be referred to the Arbitral Tribunal for decision. 40. Upon receipt of the experts report, the Arbitral Tribunal shall inform the Parties of the contents of the report and the Parties shall be given an opportunity to express, in writing, their opinion on the report. 41. The expert shall, at the request of a Party, make available to that Party for inspection all documents, goods or other property in the experts possession which the expert was provided with in order to prepare the experts report and the expert shall provide that Party with a list of all documents, goods or other property not in the experts possession but with which the expert was provided in order to prepare the experts report, and a description and location of those documents, goods or other property. 42. If a Party requests or if the Arbitral Tribunal considers it necessary, the expert shall, after delivery of the experts written or oral report, be present at an oral hearing where the Parties will have the opportunity to cross-examine the expert and call evidence in rebuttal. Default of Party 43. Where a claimant, without sufficient cause, and after five (5) days written notice from the Arbitral Tribunal, fails to communicate the claimants statement of claim within the required time, the Arbitral Tribunal may terminate the Arbitral Tribunal with respect to that claim. 44. Where the respondent, without sufficient cause and after five (5) days written notice from the Arbitral Tribunal, fails to communicate the respondents statement of defence within the required time, the Arbitral Tribunal shall continue the arbitration. An award shall not be made solely on the default of the respondent. The Arbitral Tribunal

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shall require the claimant to submit such evidence as the Arbitral Tribunal may require for the making of the award. 45. Where a Party, without sufficient cause, fails to appear at an oral hearing or fails to produce documentary evidence, the Arbitral Tribunal may continue the arbitration and the Arbitral Tribunal shall make an award based upon the evidence before the Arbitral Tribunal. 46. Where a Party, without sufficient cause, fails to comply with any order or direction of the Arbitral Tribunal or any requirement under the Arbitration Act, 1991 or this Schedule I (Arbitration), the Arbitral Tribunal may grant such relief as the Arbitral Tribunal deems appropriate, including costs. General powers of Arbitral Tribunal 47. The Arbitral Tribunal may: (a) (b) order an adjournment of the proceedings from time to time; make an interim order on any matter with respect to which the Arbitral Tribunal may make a final order; including an interim order for the preservation of property which is the subject matter of the dispute; order on-site inspection of documents, exhibits or other property; at any time extend or abridge a period of time required in this Schedule I (Arbitration) or fixed or determined by the Arbitral Tribunal where the Arbitral Tribunal considers it just and appropriate in the circumstances.

(c) (d)

Representation 48. The Parties may be represented or assisted by any person during an arbitration.

49. Where a Party intends to be represented or assisted by a lawyer, the Parties shall, in writing, advise the other party of the lawyers name and the capacity in which the lawyer is acting, at least five (5) days before any scheduled meeting or hearing. Award of Arbitral Tribunal 50. Unless the Parties otherwise agree, the award of the Arbitral Tribunal must be made within sixty (60) days of the conclusion of the arbitration hearing. 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.

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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. In determining the allocation between the Parties of the costs of the arbitration, including the professional fees of the Arbitral Tribunal and the administrative costs associated with the arbitration, the Arbitral Tribunal may invite submissions as to costs and may consider; among other things, an offer of settlement made by a Party to the other Party prior to or during the course of the arbitration. Unless otherwise directed by the Arbitral Tribunal, all costs of the Arbitral Tribunal will be paid equally by the claimant and the respondent.

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