HomeMy WebLinkAbout2014-052 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO. 2014-052
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
ian Foste , Mayor
t.An' Greentr e, Deputy Clerk
Attachment A
MUNICIPAL FUNDING AGREEMENT
FOR THE TRANSFER OF FEDERAL GAS TAX FUNDS
This Agreement made in duplicate as of 1st 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 Goyemment 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 AiviO agreed to
administer federal gas tax funds made available to Ontario ni•unicipalities, excluding Toronto,
pursuant to the Canada-Ontario-AMO-Toronto Agreement on behalf of Canada,
.'HI-RAS the anaa- ntar o A4 E O { - MC-Tor of to 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;
6A % A nYn S i 11 U aU mi isacoordinating.1! REM carrying out th fund ntrti d rG ii c accordance
v i c {LS Gvi{gaUGi?S Set GE~L iii Lhe Canat:a-v�:lai fG-.-u Ci-TGr GriL G—gr cement and id :t`s`v:il
accordingly undertake certain activities and require Recipients to undertake activities as set out
in this Agreement.
THEREFORE the Parties agree as follows:
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DEFINITIONS AND INTERPRETATION
1.1 be milt ons. 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.
"A§iSociatlonn 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)� -��.�onies raised (during that period) under the D2vzlopment 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
i 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 Af`airs.
"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.
ea EI @ •olcFOie o oECCtS" n2anS pr CeC}S.as described ir B
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cc`EiV'�EC Re-c ple=t" 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 organ'IZ2t10nS, on the condition that ti ie 1110unicipalityjies) 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
fhd Keeping Canada's Economy and Jobs Growing Act, S.C. 2011, c. 24 as
amended by Section 233- of the Economic Action Plan 2099 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 (fl, 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 Aareement 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 Tier Municipality" means a municipality that forms part of an upper-tier
Municipality for municipal purposes, as defined under the Municipal Act, 2009
S.O. 2001 c.25.
°Cluiunicipal Fiscal, ,ear" means the period beginning January 1St of a year and
ending December 31St of the same year.
"Municipality" and "Municipalities" means every municipality as defined under
the Municipal Act, 2009 S.O. 2001 c.25.
"Oner investment Program" means the co-investment program operated jointly
by Local Authority Services, an incorporated subsidiary of AMO and CHUMS
Financing jai iii iu vCr pvraiivn, an iiiwrpvr aicu vvi wuy-C v4 ieu SuvSiuiai y of a ie ivlu In wiNa
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 a� 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 3.1, 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,.Daragraph 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.
Statues. 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. TERM OF ACRE00ENT
') 1 ' ernn'. l;e ' v= nr termination r:f this Agree,^^.mn+ nr the I ini:%/a!
�.� Suui�c< <c any e,--L SEGn l IIIIi.I LlVlI Vl L h;s J%,& .�; -„L s—� i, ,
of any of the previsions of this Agreement pursuant to the provisions.contained
herein, this P shall rr t r the i i a ..i i� -c.rst r
.greemer,t Snail be ;n e�,ec: from t!-.e cage set Gut on Li to i:i�L page ;�
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.acts. The Recipient will award and manage anage 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 `ligible -P;£Ject �' f� �recq Eligible Projects include investments in
.1 [[ IVI I f.GC.. Itiv. I
infrastructure for Its construction,uction, 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 aflowAMO 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, �m�ake them available to AMO and Canada.
6. FUNDS
6.1 Aiiocation of Funds. AM0 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.
4 '� T a S er f Funds to a RRI-nicipality. Where a Recipient decideS to allocate
V. 1 1 n1 e. V. I ".I- - Ivl ulllvl Y ��V
and transfer Funds to another Municipality (the "Transferee Municipality"):
(a) The allocation and fransTer snail 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 1 r al lsfer ee if unicipality is to receive f yr ti ie Municipal FISCai Year
specified in the i ransfer By-law.
(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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assum& 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 AIbMG-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 Recipients
obligations under this Agreement with respect to the Funds transferred, in
a form satisfactory to AMO.
6.T Use of Funds. The Recipient acknowledges and agrees the Funds are-ntended
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
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ransferred by AMO to the Recipient as set out in Schedule A. Subject to
Section 6.1 T, AMO vviii transfer Funds ,.V,ce yearly, on or before the dates
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
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or 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 sha!I 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 o& 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 Afithholding 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 Kiiunicipal
Fiscal Year during which this Agreement is in effect, APviO may terminate th1S
Agreement.
7. REPORTING REQUIREMENTS
A 1 D „r4 The C�cr ipicr+ Shall rcporf in the form in Schedule D due by
7.t r_Ln wall Re iii R s-
March 31 st following each Municipal Fiscal Year on:
(a) the amounts received from AMO under this Agreement in respect of the
previous Municipal Fiscal Year;
(b) tie amounts received from ane-ther 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;
(r) 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
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8.1 Asset Management Plan. The Recipient will develop and implement an Asset
Management Plan prior to December 31, 2016.
8.2 Outcores. On a date and in a mannerto be determined by AMO, the Recipient
vVili provide a .report to AMO demonstrating that Asset Management Plans are
being used to glide 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 tC b2 Subs i fitted 'v"VIII be prepared in accordance ice w i i generally aC�epied
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 F rtds to AMO and Canada for inspection or audit.
�.� XtcrnaI 4€€E�h.Gi. I% ty anU/ Canada may reC'yUcst, upon written nOLIfiCatIOn,
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 AM O.
10.3 AMO ribit liable.. In no event shall Canada orAMO 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
EI_Ig+ble 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 i 115 or her duties.
•4 • • • e • • A EP TL 2 L ` .:
Recipient to InCia'rmill S. i�L'eE�s. 1IIe Recipient L II- uy G�rE�S C Its llttl..� ci1G
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 TERMHNATION
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 Repot that discloses non-compliance with any -
cor`iticn, undertaking or material ter,, 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., 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 holdel'
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, information or document provided for ui i e d^- fills Agr ee�i Lei�i
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
have,beep given when received; any notice majlad 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 email,
if It is not given on a business may ho=in re 4:30 p.m. Eastern Sta nda rd Tim e, it
shall be deemed to have been given at 8:30 a..i. 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:
12
(a) If to AMO:
Executive Director
Federal Gas Tax Fund Agreement
Association of Municipalities of Ontario
200 University Avenue, Suite,801
Toronto, ON-M5H 3C6
Telephone: 416-971-9856
Facsimile: 416-971-6191
Email: gastax @amo.on.ca
(b) If to the Recipient:
Nancy 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
15. MISCELLANEOUS
15.1 Counterpart Signature. This Agreement may be signed in counterpart, and the
signed copies wilt, 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 wily be deleted from this
Agreement, but all the other terms and conditions of this Agreementwill 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.
13
I
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 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
matter 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 N _= F�UNfC',PALI TY OF CLARINO=TON'
By: IcAq
Na e: Date
Affix Title: dria.n Foster, Mayor
Corporate
Seal
14
Na e: C.Anne Greentree, Deputy Clerk Date
Title:
THE ASSOCIATION OF MUNICIPALITIES OF ONTARIO
Corporate C , itle: Ex 6utive Director D to
Cor
Seal
In the presence of:
iN tness: 4 < D
I ille:
i
15
I
- � � ,
1�
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 $11,346,467.28 $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.
17
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.
4 n aste — i.o soli d rite management systems im-h idi n the collection dnimr5. S—oIi� — , L. , . ci
on
and disposal of recyclables, compostable materials and garbage.
5. 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.
Q. Short-sine rail —i.e. rail.^ray 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. infrastrucfi!re that provides internet access to residents,
businesses, and/or institutions in Canadian communities.
112. Brownfield Redevelopment i.e. remediation or decontamination and redevelopment of a
bro,kinfield 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.
18
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. Nsaster 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.
19
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:
0) 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-a4Ne to demonstrate 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
(C the arrangement is approved in advance and in writing by the Oversight
Committee.
1.3 A!E�Q as Agreement Admi€�iGtrator: Up to 0.5% of the total funds will used by
-:I�"O to undertake the admi nit strati,t,e 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 pilOr t0 undertaking theadminlStrative and related activities.
20
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) shoit-Iine 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.
!r-\ the rnct of leaSinn of mm iimm�nt by the Reriniant any nwerheaH rncts,
\ / ..t, ... .�...r,�..... y ...p......y ... 7
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.
21
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:
,f � �l ��4 ,t MaF 1, z3 1 `•'' Si^R`. "k' �. r Ja,! �. 'fir, cn J .�: f +g
Annual,�r x ICumulafive,
n
r� ��,
V J fltn
ry a r xr
20xX y w 2Q?14 20xx,la a:
y� r* : x,� fi3 a Nips a
a1 �penin,g Balapce:�'�
^Ih'�t141r�1$nni.3 liul��I� °
Z66 IV from h AMO
�i
,U`5M[,,� 7�R '�7� '!`"Lg f f l � r I ILpw fl u:,r' ; N•1.L �Y���` i-4�(Lr'�I Ir��• �,t
I.Q.
(nterest��Earned �� �'rI i
X)OC �I� l
S I
_ •�w�,., 6,- �^I e a .} � ul. .� .H 1.111 Il4i-�`I��I .,wll tl�l��cl�I ��4�r f''I`Y �����I II"o I hll�la: w. I I
YI I vrl I I 1�. �I I 'I � IIJ.�,i I I 4 II J ��.•i I
Received from a Municipality $xc J na $xxx x
I�.l;'r "I'il� Y'�Iww ICI 'L h Il�r,fl II I ��� hIG
Transferred to a Munic!pality ($fix) I wl,l ;( � pl a,l ,
1 S" II III III ;Ili r F�'�' I r I.aI yl
Spent on Eligible Prajects (for e l
L4.. ti k r I�71II I ($ NL" ylr
reach Eligibie Project cateoory) ,r � �:ry ,'fall
P., I� 4i-ftl n.�Nl�w
losin I3aiance OT uns ent ' 1 ,I 1ill,i�' �d IIrlh y'H �V{Ild�i M
19 p �I i I �ryyu-y H PIN
r fu
.: �i
(h) Protect List: The Recipient will provide to AMO a project list submitted in
accordance with the following template:
GEliaible
Projectr f Fra�ect OI�, ToEa! FRds (GTF) ,I
Recipient project gal CQr.2pleted ;I
:. Ti�.le DescripKfQn Fro�ect Cast Spent yI
�at�g
.. ,..•.,, .., .:. ��'r. ���` " .fir-r'.
(Yes/No/Ongoing)
(Yes/iNlo/^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).
22
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 commuriities 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.
23
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 contrtbutTon (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
mark er'with respect to an Eligible Project, it must recognize the federal
centribution 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 flmited to, news
conferences, public announcements, official events or ceremonies, and views
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.
24
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
designated.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 wrh regards to the use of Funds.
5.2 When undertaking such activities, the Recipient���ili provide the opportunity for
A MO-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 by Canada or AiviO C"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 acti��lities.
6. Operational Communications
6 - 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 o'sicial 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-AtVIO-Toronto Agreement will advise the
Recipient about media inquiries, concerning an Eligible Project.
7. Comirniunica ing 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