Project Co shall prepare, retain and maintain, at its own expense, all the records
(including superseded records) referred to in Section 2.1 of this Schedule 26, as follows:
(a)
in accordance with this Section 1 of this Schedule 26;
(b)
in accordance with the Project Agreement;
(c)
in accordance with the requirements of Good Industry Practice;
(d)
having due regard to the guidelines and policies of the Office of the Information
and Privacy Commissioner of Ontario;
(e)
in accordance with the most stringent of Project Co's, the Construction
Contractor's and the OM&R Provider's normal business practices;
(f)
in accordance with Canadian GAAP;
(g)
in chronological order;
(h)
in sufficient detail, in appropriate categories and generally in such a manner as to
enable Project Co to comply with Project Co's obligations under Section 37 of this
Project Agreement; and
(i)
in a form that is capable of audit.
1.2
Project Co shall retain and maintain all records at the Parkway or otherwise on the Site.
1.3
Wherever practical, original records shall be retained and maintained in a hard copy
form. Project Co may retain true copies of original records where it is not practical to
retain original records.
1.4
Any drawings (including, without limitation, the As Built Drawings) required to be made
or supplied pursuant to this Project Agreement shall be on the most updated version of
the applicable software and editable in updated base software format, of a size
appropriate to show the detail to be depicted clearly without magnifying aids, shall be
consistent in size and format to drawings previously submitted by Project Co to HMQ,
and shall conform to the Output Specifications, Good Industry Practice and the CAD
Standards. Where by prior agreement HMQ and Project Co have agreed to accept DVD
or other storage media, Project Co shall make or supply drawings and other documents in
such form as has been agreed by the Parties and shall include secure back up facilities.
1.5
Records may, with the consent of HMQ, not to be unreasonably withheld or delayed, be
stored in electronic form if HMQ has access thereto and will continue to have access
thereto, such that HMQ will be able to read, copy, download, and search same without
licence or payment.
1.6
Subject to Sections 1.7 and 1.8 of this Schedule 26, Project Co shall retain and maintain
in safe storage, at its expense, all records referred to in Section 2.1 of this Schedule 26 for
a minimum period of the greater of:
(a)
7 years; and
(b)
6 years following Phase Substantial Completion of the Phase to which the records
relate or, if the records relate to the Project generally, 6 years following
Substantial Completion,
or such longer period as required by Applicable Law.
1.7
Project Co shall notify HMQ if Project Co wishes to destroy any records referred to in
this Schedule 26, or in respect of which the required period under Section 1.6 or under
Applicable Law for their retention has expired. The Parties agree that:
(a)
within 60 days of such notice, HMQ may elect to require Project Co to deliver
such records to HMQ, in which case Project Co shall, at the expense of HMQ,
deliver such records (with the exception of Sensitive Information) to HMQ in the
manner and to the location as HMQ shall specify; or
(b)
if HMQ fails to notify Project Co of its election pursuant to Section 1.7(a) of this
Schedule 26 within such 60 day period, Project Co may, at its expense, destroy
such records.
1.8
In the event of termination of this Project Agreement prior to the Expiry Date, Project Co
shall deliver all records that Project Co retains and maintains pursuant to this Schedule 26
to HMQ in the manner and to the location that HMQ shall reasonably specify. HMQ
shall make available to Project Co all the records Project Co delivers pursuant to this
Section 1.8 of this Schedule 26 subject to prior reasonable notice. Project Co may deliver
true copies of original records required by:
(a)
statute to remain with Project Co;
(b)
Project Co in connection with its fulfilment of any outstanding obligations under
this Project Agreement; or
(c)
Project Co in connection with its fulfilment of any outstanding obligations under
the Lending Agreements.
1.9
Where the termination of this Project Agreement arises:
(a)
as a result of an HMQ Event of Default or pursuant to Section 47.3 of this Project
Agreement, then the costs of delivering the records and the costs for retaining
such records in safe storage will be borne by HMQ; or
(b)
for any other cause, then the costs of delivering the records and the costs for
retaining such records in safe storage for a period of at least six years following
the Termination Date (unless a longer period is required by Applicable Law),
shall be borne by Project Co.
1.10
Within 30 days after the end of each Contract Year, Project Co shall deliver to HMQ a
report, as reasonably requested by HMQ in connection with HMQ's financial reporting,
detailing to the best of Project Co's knowledge at the time of any such report any and all
liabilities, claims and demands, including contingent liabilities, claims and demands, that
Project Co has or may have against HMQ or that may be owing by HMQ to Project Co.
The Parties acknowledge and agree that the contents of any such report or the failure to
mention any matter in any such report shall not limit either Party's rights or remedies
against the other Party as contemplated by this Project Agreement.
1.11
Project Co shall provide to HMQ not later than 30 days after the end of each fiscal
quarter and 120 days after the end of each fiscal year, part or all of which falls in a
Contract Year, a copy of Project Co's audited financial statements, in respect of that
period, prepared in accordance with Applicable Law and Canadian GAAP, together with
copies of all related auditors' reports and, to the extent publicly available, all related
directors' reports and other notices and circulars to shareholders or partners, all of which
documents, whether or not marked or identified as confidential or proprietary but subject
to the exceptions contained in Section 52 of this Project Agreement, shall be treated by
HMQ as Confidential Information of Project Co
2.
Records To Be Kept
2.1
Without limiting any other requirement of this Project Agreement, Project Co shall
prepare, retain and maintain at its own expense:
(a)
this Project Agreement, its Schedules and the Project Documents, including all
amendments to such agreements;
(b)
all records relating to the appointment and replacement of the HMQ
Representative and the Project Co Representative;
(c)
any documents, drawings (including, without limitation, the As Built Drawings)
or submissions in accordance with Schedule 10 - Review Procedure;
(d)
any documents relating to Development Approvals and other Project Co Permits,
Licences and Approvals, including any refusals and appeals relating to any
applications;
(e)
all records relating to any statutory inspections of the Parkway or the Site,
including any roadways;
(f)
any notices, reports, results and certificates relating to Phase Substantial
Completion and Phase Final Completion of each of Phase One and Phase Two,
Substantial Completion and Final Completion of the Initial Works and completion
of the Project Co Commissioning;
(g)
all operation and maintenance manuals;
(h)
any documents relating to events of Force Majeure, Delay Events, Compensation
Events, Relief Events and Excusing Causes;
(i)
all formal notices, reports or submissions made to or received from HMQ in
connection with the provision of the OM&R Work, the monitoring of
performance, the availability of the Parkway, and payment adjustments;
(j)
all certificates, licences, registrations or warranties related to the performance of
the OM&R Work;
(k)
the invoices for Monthly OM&R Payments;
(l)
all documents submitted in accordance with Schedule 22 - Variation Procedure;
(m)
any documents related to decisions resulting from the Dispute Resolution
Procedure;
(n)
any documents related to a Project Co Change in Ownership or Change in
Control;
(o)
any documents relating to any Refinancing;
(p)
all accounts for Taxes and transactions relating to Taxes, including in relation to
HST applicable to the Project, but excluding any records for:
(i)
Project Co's liabilities or payments under the Income Tax Act (Canada),
the Income Tax Act (Ontario) or any similar statute in any other
jurisdiction;
(ii)
Project Co's liabilities or payments for capital taxes based on or measured
by the capital of Project Co;
(iii)
the withholdings of any payments by Project Co; or
(iv)
any business or activity in addition to the business or activities related to,
and conducted for, the purpose of the Project;
(q)
the financial accounts of Project Co referred to in Section 1.11 of this Schedule 26
above;
(r)
such documents as HMQ may reasonably require relating to Business
Opportunities in which HMQ has a right or interest;
(s)
all records required by Applicable Law (including in relation to health and safety
matters) to be maintained by Project Co with respect to the Project Operations;
(t)
any documents relating to insurance and insurance claims;
(u)
all Jointly Developed Materials; and
(v)
all other records, documents, information, notices or certificates expressly
required to be produced or maintained by Project Co pursuant to this Project
Agreement.
2.2
Either Party may review the documents required to be prepared, retained and maintained
by Project Co pursuant to Section 2.1 of this Schedule 26.