17-13 SWIFT Agreement RescindedCOUNTY OF ELGIN
By -Law No. 17-13
Rescinded by By -Law No. 17-26
September 12, 2017 Council
"BEING A BY-LAW TO AUTHORIZE A MUNICIPAL CAPITAL AGREEMENT
BETWEEN THE CORPORATION OF THE COUNTY OF ELGIN AND THE
SOUTHWESTERN INTEGRATED FIBRE TECHNOLOGY NETWORK"
WHEREAS Section 5(3) of the Municipal Act, S.O. 2001, Chapter 25 as amended
grants municipal power to exercise its capacity, rights, powers and privileges by by-law;
and,
WHEREAS Section 8(1) of said Act confers broad authority to municipalities to
govern its affairs as it considers appropriate; and,
WHEREAS Section 9 of said Act confers upon a Municipality the rights, powers and
privileges of a natural person for the purpose of exercising its authority under this or any
other Act; and,
WHEREAS Section 20 (1) of said Act grants a municipality the power to enter into
an agreement with one or more municipalities or local bodies, or a combination of both to
jointly provide, for their joint benefit, any matter which all of them have the power to
provide within their own boundaries; and,
WHEREAS the Corporation of the County of Elgin recognizes the importance of the
construction of an ultra -high-speed, open access fibre optic network throughout
Southwestern Ontario to enhance the prosperity and overall well-being of communities in
the region; and
WHEREAS the Council of the Corporation of the County of Elgin deems it expedient
to enter into the attached municipal capital agreement with the Southwestern Integrated
Technology Fibre Network.
NOW THEREFORE the Municipal Council of the Corporation of the County of Elgin enacts
as follows:
THAT The municipal capital agreement between the Corporation of the County of
Elgin and the Southwestern Integrated Fibre Technology Network, attached hereto
and forming part of this by-law, be authorized and that the contribution in the
amount of $527,793 (raised in instalments) provided for therein be hereby granted;
and,
2. THAT the Warden and Chief Administrative Officer be authorized and directed to
enter into and execute the municipal capital agreement, which is hereby
incorporated into and forming part of this by-law.
READ A FIRST, SECOND AND THIRD TIME AND FINALLY PASSED THIS 11TH DAY OF
APRIL 2017.
Chief Administrative Officer.
THIS AGREEMENT MADE THIS DAY OF , 201
:41JN:►
11
(hereinafter referred to as the "Municipal Member")
-and-
SOUTHWESTERN INTEGRATED FIBRE TECHNOLOGY INC.
(hereinafter referred to as "SWIFT")
WHEREAS SWIFT, a not-for-profit, non -share capital corporation incorporated under the laws
of Canada, has been formed and mandated by the Western Ontario Wardens' Caucus
("WOWC") to facilitate the construction and interconnection of an ultra -high-speed, open access
fibre optic network (the "SWIFT Network") throughout the regions of southwestern Ontario,
Caledon and Niagara (the "Regions");
AND WHEREAS the SWIFT Network is intended to enhance the prosperity and overall well-
being of communities within the Regions by subsidizing private Telecom Service Providers'
("TSPs") network infrastructure costs so they may provide service to .residents, businesses,
public service organizations, First Nations and other user groups and ultimately provide
equitable access to ubiquitous fibre optic infrastructure;
AND WHEREAS the SWIFT Network will be built and operated by the TSPs, owned by the
TSPs (subject to any conditions of the federal and provincial funding described below), and
overseen by SWIFT;
AND WHEREAS the estimated initial costs of the SWIFT Network are $269 million (the
"Initial Costs"), which will be funded as follows:
(a) the Government of Canada and the Province of Ontario have collectively
committed to fund $180 million of the Initial Costs;
(b) the counties and municipalities listed on Schedule "A" hereto (including the
Municipal Member) (the "Municipal Partners") have collectively committed to
fund $12,804,050 of the Initial Costs (the "Municipal Funding") in accordance
with the funding formula approved by WOWC on January 9, 2015 and set out on
Schedule "A" hereto (the "Funding Formula"), a portion of which funding is
refundable to each Municipal Partner as set out in the Funding Formula;
Approved SWIFT board March 10, 2017
-2-
(c) other municipalities, including but not limited to Niagara Region, the Town of
Caledon and the City of Orillia, will fund an additional $5,200,000; and
(d) the TSPS will fiend the remaining Initial Costs;
AND WHEREAS in order to advance the development of the SWIFT Network, by resolution
dated [131, the Municipal Member has agreed to contribute to SWIFT $[ NJ of the Municipal
Funding (the "Member Contribution"), of which $[11] is initially refimdable to the Municipal
Member in accordance with the Funding Formula and which amount shall be reduced in
accordance with the terms of this Agreement (the "Refundable Portion");
AND WHEREAS in consideration for the Member Contribution, SWIFT shall facilitate the
construction and interconnection of the SWIFT Network;
AND WHEREAS once the SWIFT Network becomes operational, a portion of the revenues of
the TSPS derived from the SWIFT Network (such portion to be agreed between SWIFT and the
ISPs) will be paid to SWIFT, aggregated in a Broadband Development Fund (the `BDF"), and
used by SWIFT to (a) fund expansion of the SWIFT Network by the TSPs throughout the
Regions and (b) repay the refundable portion of each Municipal Partner's contribution towards
the Municipal Funding;
NOW THEREFORE IN CONSIDERATION OF THE PREMISES AND MUTUAL
COVENANTS HEREIN CONTAINED AND OF OTHER GOOD AND VALUABLE
CONSIDERATION, THE. RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED BY EACH PARTY, THE PARTIES HERETO DO HEREBY
COVENANT AND AGREE AS FOLLOWS:
The Municipal Member agrees to contribute to SWIFT, for the purposes of advancing
and developing the SWIFT Network, the Member Contribution.
2. The Municipal Member shall pay SWIFT the Member Contribution in annual
installments, on such dates and in such amounts set out on Schedule `B" hereto, against
receipt by the Municipal Member of invoices from SWIFT therefor.
3. The Municipal Member acknowledges that, in order to achieve total Municipal Funding
of $12,804,050, SWIFT may request that the Municipal Member and each of the other
Municipal Partners proportionately increase their respective contributions towards the
Municipal Funding if one or more Municipal Partners withdraws from participation in the
development of the SWIFT Network or otherwise fails to contribute its share of the
Municipal Funding.
4. The Municipal Member shall provide input and feedback to SWIFT, as requested by
SWIFT from time to time, regarding the points of presence and fibre cable plant locations
to be established within the Municipal Member's territory as part of the SWIFT Network.
SWIFT shall otherwise be responsible for coordinating the development of the SWIFT
Network with the TSPs.
AMENDED BA -01-16, February 27, 2017
22533314.11
-3-
5. SWIFT shall keep the Municipal Member informed of the progress of the SWIFT
Network by delivering a report to all Municipal Partners on a semi-annual basis, which
report shall include financial information and information about the status of
procurement, construction and operation of the SWIFT Network.
In respect of each fiscal year of SWIFT following the date that is twelve (12) months
after the SWIFT Network commences delivering broadband services to users and
generating revenues for the BDF, a portion of the net positive revenue (if any) of the
BDF for such fiscal year shall be allocated to repay the refundable portion of the
contributions made by the Municipal Partners towards the Municipal Funding, which
amount shall be allocated proportionately among the Municipal Partners based on each
Municipal Partner's contribution towards the total Municipal Funding (the Municipal
Member's proportionate share of such amount is hereinafter referred to as its "Annual
Refundable Amount").
7. The Annual Refundable Amount shall be automatically reinvested by SWIFT to
accelerate or further expand the development of the SWIFT Network unless the
Municipal Member provides notice to SWIFT at least 6 months prior to the end of the
relevant fiscal year that it wishes the Annual Refundable Amount for such fiscal year to
be paid by SWIFT to the Municipal Member.
7.1 If the Municipal Member provides such notice in accordance with Section 8, the
Annual Refundable Amount for such fiscal year shall be paid by SWIFT to the
Municipal Member within 3 months following the end of the relevant fiscal year.
7.2 If the Municipal Member does not provide such notice in accordance with
Section 8, the Annual Refundable Amount for such fiscal year shall be reinvested
by SWIFT as described above.
S. The Refundable Portion shall be reduced by the Annual Refundable Amount for each
relevant fiscal year, whether such Annual Refundable Amount is paid to the Municipal
Member or reinvested by SWIFT pursuant to Section 8. Once the Refundable Portion is
reduced to $0, no further Annual Refundable Amounts shall be paid to the Municipal
Member or reinvested by SWIFT pursuant to Section 8.
The Municipal Member may, at its option, exercisable by initialing where indicated on
the signature page to this Agreement, irrevocably waive its right to repayment by SWIFT
of all Annual Refundable Amounts and authorize SWIFT to reinvest such amounts to
accelerate or further expand the development of the SWIFT Network.
10. All of the terms of this Agreement shall be binding upon and shall enure to the benefit of
the parties hereto and their respective successors and assigns.
11. - Time shall be of the essence herein.
[Signature Page Follows.]
AMENDED BA -01-16, February 27, 2017
22533314.11
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed by their
officers properly authorized in that behalf of the day and year first written above.
[ ] The Municipal Member hereby irrevocably waives any right to repayment by SWIFT of
all Annual Refundable Amounts and authorizes SWIFT to reinvest all such amounts to
accelerate or further expand the development of the SWIFT Network.
Per:
Name:
Title:
Per:
Name:
Title:
I/We have the authority to bind the Municipal Member.
SOUTHWESTERN INTEGRATED
FIBRE TECHNOLOGY INC.
Per:
Name:
Title:
Per:
Name:
Title:
I/We have the authority to bind SWIFT.
AMENDED BA -01-16, February 27, 2017
22533314.11
SCHEDULE "A"
MUNICIPAL PARTNERS AND FUNDING FORMULA
Municipal Partners
Non-
refundable
(based on
area and
population)
Refundable
(based on
assessment)
Cumulative
Total
Grey County
$463,704
$616,276
$1,079,981
Bruce County
$391,429
$468,663
$860,092
Simcoe County
$748,208
$1,709,065
$2,457,273
Huron County
$334,579
$343,978
$678,557
Dufferin County
$201,000
$334,857
$535,857
Wellington County
$329,505
$550,896
$880,401
Perth County
$276,906
$292,578
$569,484
Oxford County
$308,291
$395,947
$704,239
Brant County
$141,701
$205,284
$346,986
Norfolk County
$218,275
$287,156
$505,432
Elgin County
$271,459
$256,334
$527,793
Middlesex County
$345,798
$438,265
$784,063
Lambton County
$403,004
$607,426
$1,010,429
Munici ality of Chatham -Kent
$333,857
$428,583
$762,440
Essex County
$398,181
$702,843
$1,101,024
$5,165,896
$7,638,153
$12,804,050
Approved SWIFT board March 10, 2017
09) :1 Dol
AMOUNTS AND DATES OF MEMBER CONTRIBUTIONS
DATE
AMOUNT
[Prior to December 31, 2016]
$ [an amount equal to 2/5 of the Member
Contribution]
[Prior to December 31, 2017]
$ [an amount equal to 1/5 of the Member
Contribution]
[Prior to December 31, 2018]
$ [an amount equal to 1/5 of the Member
Contribution]
[Prior to December 31, 2019]
$ [an amount equal to 1/5 of the Member
Contribution]
Total Member Contribution
$ [ ]
Approved SWIFT board March 10, 2017