HomeMy WebLinkAboutFND-012-14 (ban" REPORT
FINANCE DEPARTMENT
Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
Date: May 5, 2014 Resolution#: f w 3` 61 By-law#:
Report#: FND-012-14 File#:
Subject: FEDERAL GAS TAX AGREEMENT WITH THE ASSOCIATION OF
MUNICIPALITIES OF ONTARIO
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
1 . THAT Report FND-012-14 be received;
2. THAT the By-law contained in Attachment 1 to report FND-012-14, authorizing
the Mayor and Clerk to execute, on behalf of the Corporation of the Municipality
of Clarington, a Municipal Funding Agreement for the transfer of Federal Gas Tax
Funds be passed ; and
3. THAT the Association of Municipalities of Ontario be advised of Council's
decision.
Submitted by: � " Reviewed by:
ancy aylor, BA,CPA,CA, rank Iin Wu,
Director of Finance/Treasurer Chief Administrative Officer
NT/hjl
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379
REPORT NO.: FND-012-14 PAGE 2
1.0 BACKGROUND
1.1 The current Amending Agreement with the Association of Municipalities of
Ontario (AMO), extends to March 31, 2014. A new federal gas tax agreement
framework has recently been negotiated between the Federal Government, the
Government of Ontario and AMO, which requires new Municipal Funding
Agreements (MFA) be executed between each municipality and AMO. Official
announcements with be forthcoming.
2.0 NEW AGREEMENT
2.1 The new MFA is attached. The form and content of the agreement is not subject
to negotiations and the agreement is final. Schedule "A" to the agreement shows
the schedule of fund payments to the municipality for 2014 to 2018 reflecting a
redistributed share based on the 2011 census and provisions for indexing
commencing in 2016.
2.2 The receipt of federal gas tax funding is critical to the municipality in its ongoing
capital budget and asset management planning.
3.0 COMMENTS
3.1 There are some significant improvements to this agreement over previous gas
tax agreements. The annual municipal compliance audit requirements have
been removed, which assists both from a reporting perspective, as well as cost
savings to the municipality. It has been revised to a financial document that will
be mandatory for Municipal Treasurers to take responsibility for under the new
framework. Other reporting requirements have been streamlined,
communications requirements have been changed and signage requirements
have been amended.
3.2 Asset management is a key component of the new MFA and the requirements
will be incorporated into the municipality's current asset management project
deliverables. New eligible categories have been included. Council will approve
project spending through the annual capital budget process, supported by asset
management planning in the coming years.
3.3 Also, the new MFA incorporates the option of investing funds through the ONE
Funds administered jointly by AMO and MFOA. This is reflected in the By-Law.
Investment decisions will be made in accordance with the Municipality's
investment policy as funds are received from AMO based upon timing of
approved projects.
4.0 CONCURRENCE - Not applicable
REPORT NO.: FND-012-14 PAGE 3
5.0 CONCLUSION
5.1 The new MFA is a very positive step forward and allows for the continued receipt
and usage of federal gas tax funds for eligible projects. It is recommended that
the Agreement be executed in order to expedite the payment of funds for 2014
and onwards.
CONFORMITY WITH STRATEGIC PLAN —
The recommendations contained in this report conform to the general intent of the
following priorities of the Strategic Plan:
(Place an "X" in the box for all that apply)
Promoting economic development
X Maintaining financial stability
Connecting Clarington
Promoting green initiatives
X Investing in infrastructure
Showcasing our community
Not in conformity with Strategic Plan
Staff Contact: Nancy Taylor, BBA, CPA, CA, Director of Finance/Treasurer
Attachments:
Attachment 1 - By-law authorizing agreement with Association of Municipalities of
Ontario
List of interested parties to be advised of Council's decision:
Executive Director
Federal Gas Tax Fund Agreement
Association of Municipalities of Ontario
200 University Avenue, Suite 801
Toronto, ON, M5H 3C6
Attachment 1
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO. 2014-
Being a by-law to authorize an agreement between the
Corporation of the Municipality of Clarington and
the Association of Municipalities of Ontario
WHEREAS the Municipality of Clarington wishes to enter into an Agreement in order
to participate in the Federal Gas Tax fund;
AND WHEREAS the Municipality acknowledges that funds received through the
Agreement may be invested in an interest bearing reserve account for a maximum of
five (5) years;
AND WHEREAS Section 23.1 of the Municipal Act, 2001 authorizes the municipality
to delegate its powers and duties under the Municipal Act 2001, including those
related to investments;
AND WHEREAS the ONE Investment Program provides Ontario municipalities an
opportunity for competitive investment returns and diversification of investments;
AND WHEREAS the Association of Municipalities of Ontario has worked with the
ONE Investment Program to develop specific investment options for the
municipality's Gas Tax Funds;
AND WHEREAS the Director of Finance/Treasurer confirms that the ONE
Investment Program complies with the Corporation's investment policies and goals;
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON ENACTS AS FOLLOWS:
1. THAT the Mayor and Clerk are hereby authorized to execute this Municipal
Funding Agreement for the transfer of Federal Gas Tax Funds between the
Association of Municipalities of Ontario and the Corporation of the
Municipality of Clarington, as in Attachment "A" attached hereto.
2. THAT the Corporation authorizes the appointment of the Association of
Municipalities of Ontario, as the Municipality's delegate for the investment of
the municipality's Gas Tax Funds in the specific Gas Tax investment options
offered through the ONE Investment Program.
BY-LAW passed in open session on this 12th day of May 2014.
Adrian Foster, Mayor
C. Anne Greentree, Deputy Clerk
Attachment A
MUNICIPAL FUNDING AGREEMENT
FOR THE TRANSFER OF FEDERAL GAS TAX FUNDS
This Agreement made in duplicate as of 1 st day of April, 2014.
BETWEEN:
THE ASSOCIATION OF MUNICIPALITIES Of ONTARIO
(referred to herein as "AMO")
AND:
THE MUNICIPALITY OF CLARINGTON
(a municipal corporation pursuant to the Municipal Act, 2001, referred to herein as the
"Recipient")
WHEREAS the Government of Canada makes up to $2 billion per year available for allocation
by the Government of Canada for the purpose of municipal, regional and First Nations
infrastructure starting in the fiscal year beginning on April 1, 2014 under Section 161 of Keeping
Canada's Economy and Jobs Growing Act, S.C. 2011, c. 24;
WHEREAS Canada, the Province of Ontario, Ontario municipalities as represented by AMO
and Toronto are signatories to the administrative agreement on The Federal Gas Tax Fund on
April 1, 2014 (the "Canada-Ontario-AMO-Toronto Agreement"), whereby AMO agreed to
administer federal gas tax funds made available to Ontario municipalities, excluding Toronto,
pursuant to the Canada-Ontario-AMO-Toronto Agreement on behalf of Canada;
1INHEREAS the Canada-Ontario-AMO-Toronto Agreement contains a framework for the transfer
of federal gas tax funds to Ontario municipalities represented by AMO and Toronto to provide
stable, reliable and predictable funding for municipal infrastructure purposes;
"WHEREAS the Recipient wishes to enter into this Agreement in order to participate in the
federal Gas Tax Fund;
WHEREAS AMO is carrying out the fund administration and coordinating role in accordance
with its obligations set out in the Canada-Ontario-AMO-Toronto Agreement and it will
accordingly undertake certain activities and require Recipients to undertake activities as set out
in this Agreement.
THEREFORE the Parties agree as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions. When used in this Agreement (including the cover and execution
pages and all of the schedules), the following terms shall have the meanings
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ascribed to them below unless the subject matter or context is inconsistent
therewith:
"Agreement" means this Agreement, including the cover and execution pages
and all of the schedules hereto, and all amendments made hereto in accordance
with the provisions hereof.
"Annual Report" means the duly completed report to be prepared and delivered
to AMO as described in Section 7.1 and Section 1 of Schedule D.
"Asset 'Management Plan" means a strategic document that -states how a
group of assets are to be managed over a period of time. The plan describes the
characteristics and condition ' of infrastructure assets, the levels of service
expected from them, planned actions to ensure the assets are providing the
expected level of service, and financing strategies to implement the planned
actions. The plan may use any appropriate format, as long as it includes the
information and analysis required to be in a plan as described- in Ontario's
Building Together: Guide for Asset Management Plans.
"Association of Municipalities of Ontario (AMO)" means a legally
Incorporated entity under the Corporations Act, 1990 R.S.O. 1990, Chapter c.38.
"Base Amount" means an amount reflecting total municipally-funded capital
spending on Infrastructure between January 1, 2000 and December 31, 2004
less: (i) monies raised (during that period) under the Development Charges Act,
1997 S.O, 1997, c.27; and (ii) monies received (during that period) by
Municipalities under federal and provincial infrastructure programs against which
investments of Funds will be measured to ensure that investments of Funds are
incremental.
"Canada" means Her Majesty in Right of Canada, as represented by the
President of the Queen's Privy Council for Canada, Minister of Infrastructure,
Communities and Intergovernmental Affairs.
"Contract" means an agreement between the Recipient and a Third Party
whereby the latter agrees to supply a product or service to an Eligible Project in
return for financial consideration.
"Eligible Expenditures" means those expenditures described as eligible in
Schedule C.
"Eligible Projects" means projects.as described in Schedule B.
"Eligible Recipient" means:
(a) a Municipality or its agent (including its wholly owned corporation); and
(b) a non-municipal entity, including for profit, non-governmental and not-for
profit organizations, on the condition that the Municipality(ies) has (have)
Indicated support for the project through a formal by-law passed by its
(their) council(s)
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"Event of Default" has the meaning given to it in Section 12.1 of this
Agreement.
"First Agreement" means the Municipal Funding Agreement for the transfer of
federal gas tax revenues under the New Deal for Communities entered into by
AMO and the MUNICIPALITY OF CLARINGTON, with an expiry date of March
31, 2015.
"Funds" mean the Funds made available to the Recipient through the Gas Tax
Fund, a program established by the Government of Canada under Section'161 of
the Keeping Canada's Economy and Jobs Growing Act, S.C. 2011, c. 24 as
amended by Section 233 of the Economic Action Plan 2013 Act, No. 1, S.C.
2013, C. 33 or any other source of funding as determined by Canada. Funds are
made available pursuant to this Agreement and includes any interest earned on
the said Funds. For greater certainty: (i) Funds transferred to another
Municipality in accordance with Section 6.2 of this Agreement, other than as set
out in Sections 7.1(a), (c) and (f), are to be treated as Funds by the Municipality
to which the Funds are transferred and are not to be treated as Funds by the
Recipient; and (ii) any Funds transferred to a non-municipal entity in accordance
with Section 6.3 of this Agreement shall remain as Funds under this Agreement
for all purposes and the Recipient shall continue to be bound by all provisions of
this Agreement with respect to such transferred Funds.
"Ineligible Expenditures" means those expenditures described as ineligible in
Schedule C.
"Infrastructure" means municipal or regional, publicly or privately owned,
tangible capital assets primarily for public use or benefit in Ontario.
"Lower Fier Municipality" means a municipality that forms part of an upper-tier
Municipality for municipal purposes, as defined under the Municipal Act, 2001
S.O. 2001 c.25.
"Municipal Fiscal Year" means the period beginning January 'I't of a year and
ending December 31 st of the same year.
"Municipality" and "Municipalities" means every municipality as defined under
the Municipal Act, 2001 S.O. 2001 c.25.
"One Investment Program" means the co-investment program operated jointly
by Local Authority Services, an incorporated subsidiary of AMO and CHUMS
Financing Corporation, an incorporated wholly-owned subsidiary Of ii Imo° IV[tlnlClpc.,l
Finance Officers' Association of Ontario.
"Outcomes Report" means the report prepared and delivered to AMO by the
Recipient by March 31, 2017 and again by March 31, 2022 which reports on how
Funds are supporting progress towards achieving the program benefits, more
specifically described in Schedule D.
"Oversight Committee" means the committee established to monitor the overall
implementation of the Canada-Ontario-AMO-Toronto Agreement.
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"Parties" means AMO and the Recipient.
"Recipient" has the meaning given to it on the first page of this Agreement.
"Third Party" means any person or legal entity, other than the Parties to this
Agreement who participates in the implementation of an Eligible Project by
means of a Contract.
"Transfer By-law" means a by-law passed by Council of the Recipient pursuant
to Section 6.2 and delivered to AMO in accordance with that section.
"Unspent Funds" means the amount reported as unspent by the Recipient as of
December 31, 2013 as submitted in the Recipient's 2013 Annual Expenditure
Report (as defined under the First Agreement).
"Upper Tier Municipality" means a Municipality of which two or more lower-tier
municipalities form part for municipal purposes, as defined under the Municipal
Act, 2001 S.O. 2001 c.25.
1.2 Interpretations:
Herein, etc. The words "herein", "hereof' and "hereunder" and other words of
similar import refer to this Agreement as a whole and not any particular schedule,
article, section, paragraph or other subdivision of this Agreement.
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.
Statutes. Any reference to a federal or provincial 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 in effect and to any statute or
regulations that may be passed that have the effect of supplementing or
superseding such statute or regulations.
Gender, singular, etc. Words importing the masculine gender include the
feminine or neuter gender and words in the singular include the plural, and vice
versa.
2. TERItf'i OF AGREEMENT
2.1 Terris. Subject to any extension or termination of this Agreement or the survival
of any of the provisions of this Agreement pursuant to the provisions contained
herein, this Agreement shall be in effect from the date set out on the first page of
this Agreement, up to and including March 31, 2024.
2.2 Review. This Agreement will be reviewed by AMO by December 31, 2018.
2.3 Amendment. This Agreement may be amended at any time in writing as agreed
to by AMO and the Recipient.
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2.4 Notice. Any of the Parties may terminate this Agreement on two (2) .years
written notice.
2.5 The Parties agree that the First Agreement, including section 15.4 thereof, is
hereby terminated. Notwithstanding the termination of the First Agreement,
including section 15.4, the reporting and indemnity obligations of the Recipient
thereunder with respect to expended Funds governed by the First Agreement as
set forth in sections 5, 7, 10.4, 10.5 and 10.6 of the First Agreement shall survive
the said termination.
3. RECIPIENT REQUIREMENTS
3.1 Communications. The Recipient will comply with all requirements outlined in
Schedule E, including:
(a) Providing upfront project information on an annual basis for
communications purposes;
(b) Including Canada in local project communications; and
(c) Installing federal project signs.
3.2 Incrementality. Any Funds that the Recipient may receive from Canada are not
intended to replace or displace existing sources of funding for the Recipient's
tangible capital assets. The Recipient will ensure that its total annual
expenditures on tangible capital assets over the life of the Agreement, on
average, will not be less than the Base Amount.
3.3 Contracts. The Recipient will award and manage all Contracts in accordance
with its relevant policies and procedures and, if applicable, in accordance with
the Agreement on Internal Trade and applicable international trade agreements,
and all other applicable laws.
(a) The Recipient will ensure any of its Contracts for the supply of services or
materials to implement its responsibilities under this Agreement will be
awarded in a way that is transparent, competitive, consistent with value
for money principles and pursuant to its adopted procurement"policy.
4. ELIGIBLE PROJECTS
4.1 Eligible -Project Categories. Eligible Projects include investments in
Infrastructure for its construction, renewal or material enhancement in the
categories of public transit, local roads and bridges, wastewater, water, solid
waste, community energy systems, capacity building, local and regional airports,
short-line rail, short-sea shipping, disaster mitigation, broadband connectivity,
brownfield redevelopment, cultural, tourism, sport and recreational infrastructure,
as more specifically described in Schedule B and Schedule C.
4.2 Recipient Fully Responsible. The Recipient is fully responsible for the
completion of each Eligible Project in accordance with Schedule B and
Schedule C.
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5. ELIGIBLE EXPENDITURES
5.1 Eligible Expenditures. Schedule C sets out specific requirements for Eligible
and Ineligible Expenditures,
5.2 Discretion of Canada. Subject to Section 5.1, the eligibility of any items not
listed in Schedule B and/or Schedule C to this Agreement is solely at the
discretion of Canada.
5.3 Unspent Funds. Any Unspent Funds, and any interest earned thereon, will be .
subject to the terms and conditions of this Agreement, and will no longer be
- governed by the terms and conditions of the First Agreement.
5.4 Reasonable Access. The Recipient shall allow-AMO and Canada reasonable
and timely access to all documentation, records and accounts and those of their.
respective agents or Third Parties related to the receipt, deposit and use of
Funds and Unspent Funds, and any interest earned thereon, and all other
relevant information and documentation requested by AMO or Canada or their
respective designated representatives for the purposes of audit, evaluation, and
ensuring compliance with this Agreement.
5.5 Retention of Receipts. The Recipient will keep proper and accurate accounts
and records of all Eligible Projects including invoices and receipts for Eligible
Expenditures in accordance with the Recipient's municipal records.retention by-
law and, upon reasonable notice, make them available to AMO and Canada.
6. FUNDS
6.1 Allocation of Funds. AMO will allocate and transfer Funds that Canada may
make available for Ontario Municipalities to Recipients on a per capita basis with
allocations made on a 50:50 basis to upper-tier and lower-tier Municipalities,
where they exist.
6.2 Transfer of Funds to a oRu^icipa!ity. Where a Recipient decides to allocate
and transfer Funds to another Municipality (the "Transferee Municipality"):
(a) The allocation and transfer shall be authorized by by-law (a "Transfer
By-law"). The Transfer By-law shall be passed by the Recipient's council
and submitted to AMO as soon thereafter as practicable. The Transfer
By-law shall identify the Transferee.Municipality and the amount of Funds
the Transferee Municipality is to receive for the Municipaa! Fiscal Year
specified in the Transfer Bylaw.
(b) The Recipient is still required to submit an Annual Report in accordance
with Sections 7.1 (a), (c) and (f) hereof with respect to the Funds
transferred.
(c) No transfer of Funds pursuant to this Section 6.2 shall be effected unless
and until the Transferee Municipality has either (i) entered into an
agreement with AMO on substantially the same terms as this Agreement,
or (ii) has executed and delivered to AMO a written undertaking to
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assume all of the Recipient's obligations under this Agreement with
respect to the Funds transferred; in a form satisfactory to AMO.
6.3 Transfer of Funds to a non-municipal entity..Where a Recipient decides to
support an Eligible Project undertaken by an Eligible Recipient that is not a
Municipality:
(a) The provision of such support shall be authorized by a by-law (a "Non-
municipal Transfer.By-law"). The Non-municipal Transfer By-law shall be
passed by the Recipient's council and submitted to AMO as soon as
practicable thereafter. The Non-municipal Transfer By-law shall identify
the Eligible Recipient, and the amount of Funds the Eligible Recipient is to
receive for that Eligible Project.
(b) The Recipient shall continue to be bound by all of the provisions of this
Agreement notwithstanding any such transfer.
(c) No transfer of Funds pursuant to this Section 6.3 shall be effected unless
and until the non-municipal entity receiving the Funds has executed and
delivered to AMO a written undertaking to assume all of the Recipient's
obligations under this Agreement with respect to the Funds transferred, in
a form satisfactory to AMO.
6.4 Use of Funds. The Recipient acknowledges and agrees the Funds are intended
for and shall be used only for Eligible Expenditures in respect of Eligible Projects.
6.5 Schedule of payout of Funds. The Recipient agrees that all Funds are to be
transferred by AMO to the Recipient as set out in Schedule A. Subject to
Secticn 6..4, /-% J will transfer Funds twice yearly, on or before the dotes
agreed upon by Canada and AMO, and, more specifically on the basis set out in
Schedule A.
6.6 Use of Funds. The Recipient will deposit the Funds in a dedicated reserve fund
or other separate distinct interest bearing account or invest the Funds through
the One Investment Program or any other eligible investment permitted by the
Ontario Municipal Act, 2001 and shall retain the Funds in such reserve fund,
account or investment until the Funds are expended or transferred in accordance
with this Agreement. The Recipient shall ensure that:
(a) any investment of unexpended Funds will be in accordance with Ontario
law and the Recipient's investment policy; and,
(b) any interest earned on Funds will only be applied to Eligible Expenditures
for Eligible Projects, more specifically on the basis set out in Schedule B
and Schedule C.
6.7 Funds advanced. Funds transferred by AMO to the Recipient shall be
expended by the Recipient in respect of Eligible Expenditures within five (5)
years after the end of the year in which Funds were received. Unexpended
Funds shall not be retained beyond such five (5) year period. AMO reserves the
right to declare that Unexpended Funds after five (5) years become a debt to
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Canada which the Recipient will reimburse forthwith on demand to AMO for
transmission to Canada.
6.8 Expenditure of Funds. The Recipient shall expend all Funds by December 31,
2028.
6.9 GST & HST. The use of Funds is based on the net amount of goods and
services tax or harmonized sales tax to be paid by the Recipient net of any
applicable tax rebates.
6.10 Limit on Canada's Financial Commitments. The Recipient may use Funds to
pay up to one hundred percent (100%) of Eligible Expenditures of an Eligible
Project.
6.11 Federal Funds. The Recipient agrees that any Funds received will be treated as
federal funds for the purpose of other federal infrastructure programs.
6.12 Stacking. If the Recipient is receiving -federal funds under other federal
infrastructure programs in respect of an Eligible Project to which the Recipient
wishes to apply Funds, the maximum federal contribution limitation set out in any
other federal infrastructure program agreement made in respect of that Eligible
Project shall continue to apply.
6.13 Withholding Payment. AMO may withhold payment of Funds where the
Recipient is in default of compliance with any provisions of this Agreement.
6.14 Insufficient funds provided by Canada. Notwithstanding Section 2.4, if
Canada does not provide sufficient funds to continue the Funds for any Municipal
Fiscal Year during which this Agreement is In effect, AIVIU nnay terminate this
Agreement.
7. REPORTING REQUIREMENTS
7.1 Annual Report. The Recipient shall report in the form in Schedule D due by
March 31 st following each Municipal Fiscal Year on:
(a) the amounts received from AMID under this Agreement in respect of the
previous Municipal Fiscal Year;
(b) the amounts received from another Municipality;
(c) the amounts transferred to another Municipality;
(d) amounts paid by the.Recipient in aggregate for Eligible Projects;
(e) amounts held at year end by the Recipient in aggregate, including
interest, to pay for Eligible Projects;
(f) indicate in a narrative the progress that the Recipient has made in
meeting its commitments and contributions; and,
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(g) a listing of all Eligible Projects that have been funded, indicating the
location, investment category, project description, amount of Funds and
total project cost.
7.2 Outcomes Report. The Recipient shall account in writing for outcomes
achieved as a result of the Funds through an Outcomes Report to be submitted
to AMO. Specifically the Outcomes Report shall describe, in a manner to be
provided by AMO, the degree to which investments in each Eligible Project are
supporting progress towards achieving:
(a) beneficial impacts on communities of completed Eligible Projects; and
(b) enhanced impact of Funds as a predictable source of funding.
8. ASSET MANAGEMENT
8.1 Asset Management Plan. The Recipient will develop and implement an Asset
Management Plan prior to December 31, 2016.
8.2 Outcomes. On a date and in a manner to be determined by AMO, the Recipient
will provide a report to AMO demonstrating that Asset Management Plans are
being used to guide infrastructure planning and investment decisions and how
Funds are being used to address priority projects.
9. RECORDS AND AUDIT
9.1 Accounting Principles. All accounting terms not otherwise defined herein have
the meanings assigned to them; all calculations will be made and all financial
data to be submitted will be prepared in accordance with generally ally accepted
accounting principles (GAAP) in effect in Ontario. GAAP will include, without
limitation, those principles approved or recommended for local governments from
time to time by the Public Sector Accounting Board or the Canadian Institute of
Chartered Accountants or any successor institute, applied on a consistent basis.
9.2 .Separate records. The Recipient shall maintain separate records and
documentation for the Funds and keep all records including invoices, statements,
receipts and vouchers in respect of Funds expended on Eligible Projects in
accordance with the Recipient's municipal records retention by-law. Upon
reasonable notice, the Recipient shall submit all records and documentation
relating to the Funds to AMO and Canada for inspection or audit.
9.3 External Auditor. AMO and/or Canada may request, upon written notification,
an audit of Eligible Project or an Annual Report. AMO shall retain an external
auditor to carry out an audit of the material referred to in Sections 5.4 and 5.5 of
this Agreement. AMO shall ensure that any auditor who conducts an audit
pursuant to this Section of this Agreement or otherwise, provides a copy of the
audit report to the Recipient and Canada at the same time that the audit report is
given to AMO.
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10. INSURANCE AND INDEMNITY
10.1 Insurance. The Recipient shall put in effect and maintain in full force and effect
or cause to be put into effect and maintained for the term of this Agreement all
the necessary insurance with respect to each Eligible Project, including any
Eligible Projects with respect to which the Recipient has transferred Funds
pursuant to Section 6 of this Agreement, that would be considered appropriate
for a prudent .Municipality undertaking Eligible Projects, including, where
appropriate and without limitation, property, construction and liability insurance,
which insurance coverage shall identify Canada and AMO as additional insureds
for the purposes of the Eligible Projects.
10.2 Certificates of Insurance. Throughout the term of this Agreement, the Recipient
shall provide AMO with a valid certificate of insurance that confirms compliance
with the requirements of Section 10.1. No Funds shall be expended or
transferred pursuant to this Agreement until such certificate has been delivered
to AMO.
10.3 AMO nit liable. In no event shall Canada or AMO be liable for:
(a) any bodily injury, death or property damages to the Recipient, its
employees, agents or consultants or for any claim, demand or action by
any Third Party against the Recipient, its employees, agents or
consultants, arising out of or in any way related to this Agreement; or
(b) any incidental, indirect, special or consequential damages, or any loss of
use, revenue or profit to the Recipient, its employees, agents or
consultants arising out of any or in any way related to this Agreement.
10.4 Recipient to Compensate Canada. The Recipient will ensure that it will not, at
any time, hold Canada, its officers, servants, employees or agents responsible
for any claims or losses of any kind that the Recipient, Third Parties or any other
person or entity may suffer in relation to any matter related to the. Funds or an
Eligible Project and that the Recipient will,-at all times, compensate Canada, its
officers, servants, employees and agents for any claims or losses of any kind that
any of them may suffer in relation to any matter related to the Funds or an
Eligible Project, The Recipient's obligation to compensate as set out in this
section does not apply to the extent to which such claims or losses relate to the
negligence of an officer, servant, employee, or agent of Canada in the
performance of his or her duties.
10.5 Recipient to I ndenEnify AMO. The Recipient hereby agrees to indemnify and
hold harmless AMO, its officers, servants, employees or agents (each of which is
called an "Indemnitee"), from and against all claims, losses, damages, liabilities
and related expenses including the fees, charges and disbursements of any
counsel for any Indemnitee incurred by any Indemnitee or asserted against any
Indemnitee by whomsoever brought or prosecuted in any manner based upon, or
occasioned by, any injury to persons, damage to or loss or destruction of
property, economic loss or infringement of rights caused by or arising directly or
indirectly from:
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(a) the Funds;
(b) the Recipient's Eligible Projects, including the design, construction,
operation, maintenance and repair of any part or all of the Eligible-°=
Projects;
(c) the performance of this Agreement or the breach of any term or condition
of this Agreement by the Recipient, its officers, servants, employees and
agents, or by a Third Party, its officers, servants, employees, or agents;
and
(d) any omission or other wilful or negligent act of the Recipient or Third
Party and their respective officers, servants, employees or agents.
11. TRANSFER AND OPERATION OF MUNICIPAL INFRASTRUCTURE
11.1 Reinvestment. The Recipient will invest into Eligible Projects, any revenue that
is generated from the sale, lease, encumbrance or other disposal of an asset
resulting from an Eligible Project where such disposal takes place within five (5)
years of the date of completion of the Eligible Project.
11.2 Notice. The Recipient shall notify AMO in writing 120 days in advance and at any
time during the five (5) years following the date of completion of an Eligible
Project if it is sold, leased, encumbered or otherwise disposed of.
11.3 Public Use. The Recipient will ensure that Infrastructure resulting from any
Eligible Project that is not sold, leased, encumbered or otherwise disposed of,
remains primarily for public use or benefit.
12. DEFAULT AND TERMINATION
12.1 Event of Default. AMO may declare in writing that an event of default has
occurred when the Recipient has not complied with any condition, undertaking or
term in this Agreement: AMO will not declare in writing that an event of default
has occurred unless it has first consulted with the Recipient. Each and every one
of the following events is an "Event of Default":
(a) failure by the Recipient to deliver in a timely manner an Annual Report or
Outcomes Report.
(b) delivery of an Annual Report that discloses non-compliance with any
condition, undertaking or material term in this Agreement.
(c) failure by the Recipient to co-operate in an external audit undertaken by
AMO or its agents.
(d) delivery of an external -audit report that discloses non-compliance with
any condition, undertaking or term in this Agreement.
(e) failure by the Recipient to expend Funds in accordance with Section 6.7.
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12.2 Waiver. AMO may withdraw its notice of an Event of Default if the Recipient,
within thirty (30) calendar days of receipt of the notice, either corrects the default
or demonstrates, to the satisfaction of AMO in its sole discretion that it has taken
such steps as are necessary to correct the default.
12.3 Remedies on default. If AMO declares that an Event of Default has occurred
under Section 12.1, after thirty (30) calendar days from the Recipient's receipt of
the notice of an Event of Default, it may immediately terminate or suspend its
obligation to pay the Funds. If AMO suspends payment, it may pay suspended
Funds if AMO is satisfied that the default has been cured.
12.4 Repayment of Funds. If AMO declares that an Event of Default has not been
cured to its satisfaction, AMO reserves the right to declare that prior payments of
Funds become a debt to Canada which the Recipient will reimburse forthwith on
demand to AMO for transmission to Canada.
13. CONFLICT OF INTEREST .
13.1 No conflict of interest. The Recipient will ensure that no current member of the
AMO Board of Directors and no current or former public servant or office holder
to whom any post-employment, ethics and conflict of interest legislation,
guidelines, codes or policies of Canada applies will derive direct benefit from the
Funds, the Unspent Funds, and interest earned thereon, unless the provision of
receipt of.such benefits is in compliance with such legislation, guidelines, policies
or codes.
14. NOTICE
'14.1 Notice. Any notice, inr i Grmation or document provided for under this Agreement
will be effectively given if in writing and if delivered by hand, or overnight courier,
mailed, postage or other charges prepaid, or sent by facsimile or email to the
addresses, the facsimile numbers or email addresses set out in Section 14.3.
Any notice that is sent by hand or overnight courier service shall be deemed to
havi:! been given when received; any notice mailed shall be deemed to have
been received on the eighth (8) calendar day following the day on which it was
mailed; any notice sent. by facsimile shall be deemed to have been given when
sent; any notice sent by email shall be deemed to have been received on the
sender's receipt of an acknowledgment from the intended recipient (such as by
the "return receipt requested" function, as available, return email or other written
acknowledgment), provided that in the case of a notice sent by facsimile or ernail,
if it is not given on a business day before 4:30 p.m. Eastern Standard Time, it
shall be deemed to have been given at 8:30 a.m. on the next business day for
the recipient.
14.2 Representatives. The individuals identified in Section 14.3 of this Agreement, in
the first instance, act as AMO's or the Recipient's, as the case may be,
representative for the purpose of implementing this Agreement.
14.3 Addresses for Notice. Further to Section 14.1 of this Agreement, notice can be
given at the following addresses:
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(a) If to AMO:
Executive Director
Federal Gas Tax Fund Agreement
Association of Municipalities of Ontario
200 University Avenue, Suite,801
Toronto, ON *M51-1 3C6
Telephone: 416-971-9856
Facsimile: 416-971-6191
Email: gastax @amo.on.ca
(b) If to the Recipient:
htancy Taylor
Director of Finance/Treasurer
MUNICIPALITY OF CLARINGTON
40 Temperance Street,
Bowmanville, ON L1 C 3A6
Telephone: (905) 623-3379
Facsimile: (905) 623-0830
Email: ntaylor @clarington.net
i5. MISCELLANEOUS
15.1 Counternart Sicanature. This Agreement may be signed in counterpart, and the
signed copies will, when attached, constitute an original Agreement.
15.2 Severability. If for any reason a provision of this Agreement that is not a
fundamental term is found to be or becomes invalid or unenforceable, in whole or
in part, it will be deemed to be severable and will be deleted from this
Agreement, but all the other terms and conditions of this Agreement will continue
to be valid and enforceable.
15.3 'Waiver. AMO may waive any right in this Agreement only in writing, and any
tolerance or indulgence demonstrated by AMO will not constitute waiver of rights
in this Agreement. Unless a waiver is executed in writing, AMO will be entitled to
seek any remedy that it may have under this Agreement or under the law.
15.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable in Ontario.
15.5 Survival. The Recipient agrees that the following sections and provisions of this
Agreement shall extend for seven (7) years beyond the expiration or termination
of this Agreement: Sections 5, 6.7, 6.8, 7, 10.4, 10.5, 11, 12.4 and 15.8.
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15.6 AMO, Canada and Recipient independent. The Recipient will ensure its
actions do not establish or will not be deemed to establish a partnership, joint
venture, principal-agent relationship or employer-employee relationship in any
way or for any purpose whatsoever between Canada and the Recipient, between
AMO and the Recipient, between Canada and a Third Party or between AMO
and a Third Party.
15.7 No Authority to Represent. The Recipient will ensure that it does not represent
itself, including in any agreement with a Third Party, as.a partner, employee or
agent of Canada or AMO.
15.8 Debts Due to AMO. Any amount owed under this Agreement will constitute a
debt due to AMO, which the Recipient will reimburse forthwith, on demand, to
AMO.
15.9 Priority. In'the event of a conflict, the part of this Agreement that precedes the
signature of the Parties will take precedence over the Schedules.
16. SCHEDULES
16.1 This Agreement, including:
Schedule A Schedule of Fund Payments
Schedule B Eligible Project Categories
Schedule C Eligible and Ineligible Expenditures
Schedule D Reporting
Schedule E Communications
constitute the entire agreement between the Parties with respect to the subject
m 'ter contained in this Agreement and supersedes all prior oral or written
representations and agreements.
17. SIGNATURES
IN WITNESS WHEREOF, AMO and the Recipient have respectively executed, sealed and
delivered this Agreement on the date set out on the front page.
RECIPIENT'S NAME= MUNICIPALITY OF CLAR.IIIOTONI
By:
Name: Date
,Affix Title:
Corporate
Seal
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Name: Date
Title:
THE ASSOCIATION OF MUNICIPALITIES OF ONTARIO
By:
Affix Title: Executive Director Date
Corporate
Seal
In the presence of:
Witness: Date
Title:
15
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SCHEDULE A
SCHEDULE OF FUND PAYMENTS
RECIPIENT'S NAME: MUNICIPALITY OF CLARINGTON
The following represents an estimate of the Funds and schedule of payments for the first five (5)
years of the Agreement.
Year Schedule of Fund Payments
Payment#1 Payment#2
2014 $1,224,061.16 $1,224,061.16
2015 $1,224,061.16 $1,224,061.16
2016 $1,285,264.22 $1,285,264.22
2017 $1,285,264.22 $1,285,264.22
2018 $1,346,467.28 $1,346,467.27
An estimate of the Funds and schedule of payments for the latter five (5) years of the
Agreement (2019-2023) will be provided following the review and amendment procedures
specified in Section 2.2 and 2.3.
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SCHEDULE B
ELIGIBLE PROJECT CATEGORIES
Eligible Projects include investments in Infrastructure for its construction, renewal or material
enhancement in each of the following categories:
1. Local roads and bridges — i.e. roads, bridges, tunnels, highways and active
transportation infrastructure (active transportation refers to investments that support
active methods of travel. This can include: cycling lanes and paths, sidewalks, hiking
and walking trails).
2. Public transit - i.e. a shared passenger transport system which is available for public
use,
3. Drinking Water — i.e. drinking water conservation, collection, treatment and distribution
systems.
4. Wastewater — i.e. wastewater and storm water collection, treatment and management
systems.
5. Solid waste — i.e. solid waste management systems including the collection, diversion
and disposal of recyclables, compostable materials and garbage.
6. Community energy systems — i.e. infrastructure that generates or increases the efficient
usage of energy.
7. Capacity building - i.e. investments related to strengthening the ability of Municipalities to
,_
develop long-term planning practices.
8. Short-sea shipping — i.e. infrastructure related to the movement of cargo and passengers
around the coast and on inland waterways, without directly crossing an ocean.
9. Short-line rail — i.e. railway related infrastructure for carriage of passengers or freight.
10. Regional and local airports — i.e. airport-related infrastructure (excludes the national
Airport System),
11. Broadband connectivity — i.e. infrastructure that provides internet access to residents,
businesses, and/or institutions in Canadian communities.
-12. Brownfield Redevelopment i.e. remediation or decontarnination and redevelopment of a
brownfield site within municipal boundaries, where the redevelopment includes:
(a) the construction of public infrastructure as identified in the context of any other
eligible category referred to in this Schedule, and/or;
(b) the construction of municipal use public parks and publicly-owned social housing.
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13. Sport Infrastructure — i.e. amateur sport infrastructure (excludes facilities, including
arenas, which would be used as the home of professional sports teams or major junior
hockey teams (e.g. Junior A)).
14. Recreational Infrastructure - i.e. recreational facilities or networks.
15. Cultural Infrastructure i.e. infrastructure that supports arts, humanities, and heritage.
16. Tourism Infrastructure — i.e. infrastructure that attracts travelers for recreation, leisure,
business or other purposes.
17. Disaster mitigation — i.e. infrastructure that reduces or eliminates long-term impacts and
risks associated with natural disasters.
Note` Investments in health infrastructure (hospitals, convalescent and senior centres) are not
eligible.
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SCHEDULE C
ELIGIBLE AND INELIGIBLE EXPENDITURES
1. Eligible Expenditures
1.1 Eligible Expenditures of Recipients will be limited to the following:
(a) the expenditures associated with acquiring, planning, designing,
constructing or renovating a tangible capital asset, as defined by
Generally Accepted Accounting Principles (GAAP), and any related debt
financing charges specifically identified with that asset;
(b) for capacity building category only, the expenditures related to
strengthening the ability of Municipalities to improve local and regional
planning including capital investment plans, integrated community
sustainability plans, life-cycle cost assessments, and Asset Management
Plans. The expenditures could include developing and implementing:
(i) studies,_strategies, or systems related to asset management,
which may include software acquisition and implementation;
(ii) training directly related to asset management planning; and,
(iii) long-term infrastructure plans.
(c) the expenditures directly associated with joint federal communication
activities and with federal project signage.
1.2 Employee and Equipment Costs: The incremental costs of the Recipient's
employees or leasing of equipment may be included as Eligible Expenditures
under the following conditions:
(a) the Recipient is al le to derm}onstrate that it is not economically feasible to
tender a contract;
(b) the employee or equipment is engaged directly in respect of the work that
would have been the subject of the contract; and
(cl the arrangement is approved in advance and in writing by the Oversight
Committee.
1.3 AMO as Agreement Administrator: Up to 0.5% of the total funds will used by
AMO to undertake the administrative responsibilities to implement the Agreement
and to undertake related capacity building and program delivery including
expenditures associated with communication activities such as public project .
announcements and signage. Canada will review and accept AMO's detailed
business case submitted in accordance with the Canada-Ontario-AMO-Toronto
Agreement prior to undertaking the administrative and related activities.
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2. Ineligible Expenditures
The following are deemed Ineligible Expenditures:
(a) project expenditures incurred before April 1, 2005;
(b) project expenditures incurred before April 1, 2014 for the following Eligible
Project categories:
(i) regional and local airports;
(ii) short-fine rail;
(iii) short-sea shipping;
(iv) ' disaster mitigation;
(v) broadband connectivity;
(vi) brownfield redevelopment;
(vii) cultural infrastructure;
(viii) tourism infrastructure;
(ix) sport infrastructure; and
(x) recreational infrastructure.
(c) the cost of leasing of equipment by the Recipient, any overhead costs,
including salaries and other employment benefits of any employees of the
Recipient, its direct or indirect operating or administrative costs of
Recipients, and more specifically its costs related to planning,
engineering, architecture, supervision, management and other activities
normally carried out by its staff, except in accordance with Eligible
Expenditures above;
(d) taxes for which the Recipient is eligible for a tax rebate and all other costs
eligible for rebates;
(e) purchase of land or any interest therein, and related costs;
(f) legal fees; and
(g) routine repair and maintenance costs.
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SCHEDULE D
REPORTING
1. Annual Report
By March 31St of each year, the Recipient will provide to AMO an Annual Report in an electronic
format deemed acceptable to AMO, consisting of the following:
(a) Financial Reporting Table: The financial report table will be submitted in
accordance with the following template:
Annual'. Cumulative
Annual Report Financial'Tab,le
20xx 2014 = 20xx
openingl3alance xxx
Received from'AMQ $xxx $xxx
Interest Earned $xxx $xxx
Received from a-Municipality $xxx $xxx
Transferred to a Municipality ($xxx) ($xxx)
Spent on Eligible Projects (for
each Eligible Project category) ($xxx) ($xxx)
Closing Balance of unspent ' . $xxx
funds
(b) Project List: The Recipient will provide to AMO a project list submitted in
accordance with the following template:
Eligible
Project'- Project Total. Funds (OTF)
Recipient Project Com -leted
Title Description Project Cost Spent
category _
(Yes/No/Ongoing)
(YeS/No/Ongoing) _
(Yes/No/Ongoing)
(Yes/No/Ongoing)
1 For the 2014 Annual Report this means the amount reported as unspent by the Recipient at December 31,2013 as
reported in the 2013 Annual Expenditure Report(as defined under the First Agreement).
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2. Project Outcomes.
The Outcomes Report shall outline, in a manner to be provided by AMO, the degree to which
investments in each project are supporting progress towards achieving:
(a) Beneficial impacts on communities of completed Eligible Projects; and
(b) Enhanced impact of Funds as a predictable source of funding.
3. Asset Management Outcomes.
On a date and in a manner to be determined by AMO, the Recipient will provide a report to
AMO demonstrating that Asset Management Plans are being used to guide infrastructure
planning and investment decisions and how Funds are being used to address priority projects.
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SCHEDULE E
COMMUNICATIONS PROTOCOL
1. Purpose. The provisions of this Communications Protocol apply to all communications
activities related to any Funds and Eligible Projects. Communications activities may
include, but are not limited to, public or media events, news releases, reports, web
articles, blogs, project signs, digital signs, publications, success stories and vignettes,
photo compilations, videos, advertising campaigns, awareness campaigns;editorials,
award programs, and multi-media products.
2. Information Sharing. The Recipient agrees to provide AMO with upfront information on
planned Eligible Projects and Eligible Projects in progress on an annual basis, in an
electronic format deemed acceptable by AMO, by March 31. Information will include, at a
minimum: Eligible Project name, Eligible Category, Eligible Project description, total
budgeted federal contributtbn (gas tax) and anticipated start date.
3. Project Signage
3.1 The Recipient may have a sign recognizing its contribution to Eligible Projects.
3.2 At Canada's request, the Recipient will install a federal sign to recognize federal
funding at Eligible Project site(s). Federal sign design, content and installation
guidelines will be provided by Canada.
3.3 Where the Recipient decides to install a permanent plaque or other suitable
marker with respect to an Eligible Project, it must recognize the federal
contribution to the Eligible Project and be approved by Canada.
3.4 The Recipient is responsible for the production and installation of Eligible Project
signage, or as otherwise agreed upon.
3.5 The Recipient agrees to inform AMO of signage installations, in a manner
- determined by AMO.
4. Media Events and Announcements for Eligible Projects
4.1 The Recipient agrees to have regular announcements of Eligible Projects that
are benefitting from the Funds that may be provided by Canada. Key milestones
may be marked by public events, news releases and/or other mechanisms.
4.2 Media events and announcements include, but are not limited to, news
conferences, public announcements, official events or ceremonies, and news
releases.
4.3 Canada, AMO or the Recipient, may request a media event or announcement.
4.4 Media events and announcements related to Eligible Projects will not occur
without the prior knowledge and agreement of AMO, Canada and the Recipient.
AMO as administrator will ensure prior knowledge and agreement of other
signatories to the Canada-Ontario-AMO-Toronto Agreement.
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4.5 Canada, AMO or the Recipient in requesting a media event or an announcement
will provide at least 21 working days' notice to the Parties of their intention,to
undertake such an event. The event will take place at a date and location that is
mutually agreed to by the Recipient, AMO and Canada. The AMO, Canada and
the Recipient will have the opportunity to participate in such events through a
des ignated.representative. Each participant will choose its designated .
representative.
4.6 The conduct of all joint media events, announcements and products will follow
the Table of Precedence for Canada as outlined at the current Government of
Canada website.'
4.7 All joint communications material related to media events and announcements
must be approved by Canada and recognize the funding of all contributors.
4.8 All joint communications material must reflect Canada's policy on official
languages and the federal identity program.
5. Program Communications
5.1 The Recipient may include messaging in its own communications products and
activities with regards to the use of Funds.
5.2 When undertaking such activities, the Recipient will provide the opportunity for
AMO and Canada to participate and will recognize the funding of all contributors.
5.3 Canada and AMO agree that they will not unreasonably restrict the Recipient
from: (i) using, for its own purposes, public communications products related to
the Funds prepared IDy Canada or AMO --Communication Products or, (ii)
linking to web-based Communication Products.
5.4 Notwithstanding Section 4 of Schedule E, Canada retains the right to meet its
obligations to communicate information to Canadians about the use of Funds
through communications products and activities.
6. Operational Communications
C T The Recipient is solely responsible for operational communications with respect
to the Eligible Projects, including but not limited to, calls for tender, construction
and public safety notices. Operational communications as.described above are
not subject to the federal official languages policy.
6.2 The Recipient will share information promptly with Canada and AMO should
significant emerging media or stakeholder issues relating to an Eligible Project
arise. AMO will advise Recipients, when appropriate, about media inquiries
received by it concerning an Eligible Project and, when appropriate, other
signatories to the Canada-Ontario-AMO-Toronto Agreement will advise the
Recipient about media inquiries, concerning an Eligible Project.
7. Communicating Success Stories. The Recipient agrees to communicate with Canada
and AMO for the purposes of collaborating on communications activities and produces
25
including but not limited to Eligible Project success stories, Eligible Project vignettes, and
Eligible Project start-to-finish features.
8. Advertising Campaigns. Recognizing that advertising can be an effective means of
communication with the public, the Recipient may, at its own cost, organize an
advertising or public information campaign related to the use of the Funds or the Eligible
Projects. However such a campaign must respect the provisions of this Agreement. In
the event of such a campaign, the Recipient agrees to inform Canada and AMO of its
intention, and to inform them no less than 21 working days prior to the campaign launch.
26