HomeMy WebLinkAbout2005-211
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THE CORPORATION OF THE MUNICIPALITY OF ClARINGTON
BY-lAW 2005-211
Being a by-law to authorize an agreement between the
Corporation of the Municipality of Clarington and the
Association of Municipalities of Ontario
WHEREAS at the meeting held on November 14, 2005, the Council of the
Municipality of Clarington received correspondence from John Godfrey, Minister
of State (Infrastructure and Communities) and Roger Anderson, President,
Association of Municipalities of Ontario regarding the federal gas tax revenue;
AND WHEREAS the Council of the Municipality of Clarington passed a resolution
authorizing execution of the agreement between the Municipality and the
Association of Municipalities of Ontario:
NOW THEREFORE THE CORPORATION OF THE MUNICIPALITY OF
CLARINGTON HEREBY ENACTS AS FOllOWS:
1. THAT the Mayor and Clerk are hereby authorized to execute, on behalf of
the Corporation of the Municipality of Clarington and seal with the
Corporation Seal, an agreement between the Association of Municipalities
of Ontario and said Corporation; and
2. THAT the agreement attached hereto as Schedule "A" forms part of this
by-law.
By-law read a first and second time this 14th day of November 2005.
By-law read a third time and finally passed this 14th day of November 2005.
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unicipal Clerk
MUNICIPAL FUNDING AGREEMENT
FOR THE TRANSFER OF FEDERAL GAS TAX REVENUES UNDER
THE NEW DEAL FOR CITIES AND COMMUNITIES
This Agreement made in duplicate as of day of , 2005.
BETWEEN:
The Association of Municipalities of Ontario
(referred to herein as "AMO")
AND:
The Corporation of the Municipality of Clarington
(referred to herein as the "Recipient")
WHEREAS Ontario municipalities recognize that all governments must work
together collaboratively and in harmony to ensure that investments in
communities are strategic, purposeful and forward-looking.
WHEREAS this Agreement includes the specific provisions on the utilization of
the transfer of federal gas tax for environmentally sustainable municipal
infrastructure to primarily support environmental sustainability objectives under
Canada's New Deal for Cities and Communities.
WHEREAS Ontario municipalities agree that open communication with the
public will best serve the right of Canadians to transparency, public
accountability, and full information about the benefits of New Deal investments
in communities.
WHEREAS the Recipient wishes to enter into this Agreement in order to
participate in the transfer of federal gas tax as part of the New Deal for Cities
and Communities.
WHEREAS AMO is carrying out the fund administration and coordinating role
as is obligated in the Canada-Ontario-AMO-City of Toronto Agreement for the
Transfer of Federal Gas Tax Revenues under the New Deal for Cities and
Communities to undertake certain activities and requires Recipients to
undertake activities as set out in the 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 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 Expenditure Report" means the written annual report to be
prepared and delivered to AMO as set out in Section 7.1 hereto.
"Association of Municipalities of Ontario (AMO)" means a legally
incorporated entity under the Corporations Act(Ontario).
"Audit Statement" means a written audit statement to be prepared and
delivered to AMO as set out in Section 7.1 hereto.
"Base Amount" means the total municipally-funded capital spending on
Municipal Infrastructure by the Recipient in the period January 1, 2000 to
December 31, 2004 less monies raised under the Development Charges
Act, 1997 (Ontario) and received under Infrastructure Programs.
"Canada" means Her Majesty in Right of Canada represented by the
Minister of State (Infrastructure and Communities).
"Capacity Building Projects" means projects and activities that
strengthen the ability of the Recipient to develop and implement integrated
community sustainability plans, as more particularly described in Section
4.3.
"Capital Investment Plan" means a document, such as a capital plan,
created through a public process, with approval from municipal elected
officials, providing a detailed understanding of anticipated investments into
tangible capital assets that are considered "priorities", along with a
rationale.
"Environmentally Sustainable Municipal Infrastructure (ESMI)
Projects" means Municipal Infrastructure projects that:
i. improve the quality of the environment and contribute to reduced
greenhouse gas emissions, clean water, or clean air; and
ii. fall within the category of projects described in Section 4.1 hereto.
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"Eligible Costs" means those costs described in Schedule B attached
hereto, incurred in respect of Eligible Projects.
"Eligible Projects" means Capacity Building Projects and ESMI Projects
as defined in Section 4.1 hereto.
"Eligible Recipient" means:
i. a Municipality or its duly authorized agent (including its wholly owned
corporation);
ii. a non-municipal entity, on the condition that the Municipality where the
proposed Eligible Project would be housed has indicated support for
the Eligible Project through a formal resolution of the municipal council.
A non-municipal entity includes:
• for-profit organizations or
• non-governmental organizations, or
• not-for-profit organizations.
iii. Local Roads Boards and Local Services Boards in territory not within
the jurisdiction of a Municipality.
Federal and provincial entities in the form of departments, corporations
and agencies are not eligible recipients.
"End of Funds" means March 31, 2010.
"Event of Default" has the meaning given to it in Section 12.1 of this
Agreement.
"Fiscal Year" means the period beginning April 1 of a year and ending
March 31 of the following year.
"Funds" mean the Funds made available pursuant to this Agreement and
includes any interest earned on the said Funds.
"Infrastructure Program" means Canada's infrastructure programs in
existence at the time of the execution of this Agreement including: The
Canada Strategic Infrastructure Fund, The Border Infrastructure Fund,
The Municipal Rural Infrastructure Fund and The Infrastructure Canada
Program.
"Integrated Community Sustainability Plan" means a long-term plan,
developed in consultation with community members that provides direction
for the community to realize sustainability objectives, including
environmental, culture, social and economic objectives, as defined in
Schedule G.
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"Large Municipalities" means those Municipalities with a 2001 National
Census data population of 500,000 or more including the Regional
Municipalities of Durham, Peel and York and the Cities of Mississauga
and Ottawa.
"Lower Tier Municipality" means a municipality that forms part of an
upper-tier Municipality for municipal purposes, as defined under the
Municipal Act, 2001 (Ontario).
"Municipal Fiscal Year" means the period beginning January 1 of a year
and ending December 31 of the same year.
"Municipal Infrastructure" means tangible capital assets in Ontario
primarily for public use or benefit owned by the Recipient.
"Municipality" means every municipality as defined in the Municipal Act,
2001 (Ontario).
"Outcomes Report" means a written report prepared by the Recipient
which reports on the outputs and outcomes of the use of the Funds
according to Section 7.2 hereto.
"Oversight Committee" means the committee established to manage the
implementation of the Canada-Ontario-AMO-City of Toronto Agreement
for the Transfer of Federal Gas Tax Revenues Under the New Deal for
Cities and Communities.
"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, other than a party to this Agreement
that participates in the implementation of an Eligible Project.
"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 (Ontario).
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.
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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. TERM OF AGREEMENT
2.1.Term. 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, 2015.
2.2.Notice. Any Party may terminate this Agreement on two (2) years written
notice.
2.3.End of Funds. Notwithstanding anything in this Agreement and
regardless of the Eligible Project's state of completion, AMO shall not be
obligated to provide Funds under this Agreement after the End of Funds.
3. RECIPIENT REQUIREMENTS
3.1.The Recipient agrees to undertake and:
a. submit in writing to AMO for the local roads and bridges Eligible
Project category prior to spending the Funds the appropriate
documentation on the impact of such investments on sustainability
outcomes in the form in Schedule C of this Agreement hereto;
b. ensure that the Funds will result in net incremental capital spending
on Municipal Infrastructure;
c. ensure that there is no reduction in capital funding provided by
municipalities for Municipal Infrastructure. In the case of Recipients
that are Municipalities in excess of 100,000 in population, ensure
that over the period of April 1, 2005 to March 31, 2010 the
Recipient's capital spending on Municipal Infrastructure will not fall
below its Base Amount; and,
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d. 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 Projects. ESMI Projects include the following:
a. Public transit, e.g.:
i. Rapid Transit: tangible capital assets and rolling stock (includes
light rail, heavy rail additions, subways, ferries, transit stations,
park and ride facilities, grade separated bus lanes and rail
lines);
ii. Transit Buses: bus rolling stock, transit bus stations;
iii. Intelligent Transport System (ITS) and Transit Priority Capital
Investments;
iv. ITS technologies to improve transit priority signalling, passenger
and traffic information and transit operations;
V. Capital investments, such as transit queue-jumpers and High
Occupancy Vehicle (HOV) lanes;
vi. Para transit: rolling stock, fixed capital assets and systems;
vii. Related capital infrastructure: bus-loading bays, road
rehabilitation for bus-only lanes;
viii. Active transportation infrastructure (e.g., bike lanes).
b. Water, e.g.:
Drinking water supply; drinking water purification and treatment
systems; drinking water distribution systems; water metering
systems.
c. Wastewater, e.g.:
Wastewater systems including sanitary and combined sewer
systems; and separate storm water systems.
d. Solid waste, e.g.:
Waste diversion; material recovery facilities; organics management;
collection depots; waste disposal landfills; thermal treatment and
landfill gas recuperation.
e. Community Energy Systems, e.g.:
Cogeneration or combined heat and power projects (where heat
and power are produced through a single process);
District heating and cooling projects where heat (or cooling) is
distributed to more than one building.
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f. Local roads, bridges and tunnels, active transportation
infrastructure (e.g., bike lanes) that enhance sustainability
outcomes.
4.2.Exception. For Large Municipalities, the list of eligible categories will
consist of no more than two (2) of categories in Section 4.1 a. to e..
4.3.Capacity Building. All Recipients may also invest in Capacity Building
Projects including the following activities:
a. Collaboration: building partnerships and strategic alliances;
participation; and consultation and outreach;
b. Knowledge: use of new technology; research; and monitoring and
evaluation;
c. Integration: planning, policy development and implementation (e.g.,
environmental management systems, life cycle assessment).
4.4.Recipient fully responsible. The Recipient shall be fully responsible for
the complete, diligent and timely implementation and completion of the
Eligible Project, net of any Funds received.
4.5.Environmental Assessment. The Recipient shall comply with all
legislated environmental assessment requirements and agree that no
Funds will be committed to an Eligible Project until all environmental
assessment requirements have been satisfied including the
implementation of all mitigation measures identified in any environmental
assessment of the Eligible Project.
5. ELIGIBLE COSTS
5.1.Eligible Costs. In order for cost to be eligible for Funds pursuant to this
Agreement the cost must be in accordance with Schedule B.
5.2.Discretion of Canada. Subject to Section 5.1, the eligibility of any items
not listed in Schedule B to this Agreement is solely the discretion of
Canada.
5.3.Reasonable Access. The Recipient shall permit Canada reasonable
access to all records relating to all Eligible Projects that have received
Funds.
5.4.Retention of Receipts. The Recipient shall retain all evidence (such as
invoices, receipts, etc.) of payments related to Eligible Costs and such
supporting documentation must be available to Canada when requested
and maintained by the Recipient for audit purposes for at least three (3)
years after March 31, 2015.
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6. FUNDS
6.1.Allocation of Funds. AMO will allocate the Funds to Recipients on a per
capita basis with allocations made on a 50:50 basis to Upper Tier
Municipalities and Lower Tier Municipalities, where they exist.
6.2.Transfer of Funds. Where a Recipient decides to allocate Funds to
another Eligible Recipient it must be done by by-law. The by-law must be
passed and submitted annually to AMO on or before March 31St. The by-
law will identify the Eligible Recipient and the amount of Funds the
Eligible Recipient is receiving for that Municipal Fiscal Year.
a. Transfer of Funds Reporting. In the case of a Recipient
transferring Funds in Section 6.2 of this Agreement the Recipient is
still required to submit an Annual Expenditure Report as per
Section 7.1 a., c and f. The Eligible Recipient is responsible for all
other provisions of Section 7.1 and 7.2.
6.3.Use of Funds. The Recipient acknowledges and agrees the Funds are
intended for and shall be used only for Eligible Costs in respect of Eligible
Projects.
6.4.Schedule of payout of Funds. The Recipient has agreed that all Funds
are to be transferred by AMO electronically to the Recipient twice yearly
on or before July 15t" and November 15t". More specifically on the basis
set out in Schedule A.
6.5.Use of Funds. The Recipient is permitted to carry over unexpended
Funds from the year received into subsequent years in a reserve fund
account. The Recipient shall ensure:
a. Any investment of unexpended Funds be in accordance with
Ontario law and the Recipient's investment policy; and,
b. Any interest earned on Funds be only applied to Eligible Costs on
Eligible Projects or to eligible administration costs on the basis set
out in Schedule B.
6.6.Funds advanced. If Funds advanced by AMO to the Recipient are not
paid by the Recipient in respect of Eligible Costs within three (3) years
after the end of the year in which the advance payment was received,
AMO shall consult with the Recipient and may elect to withhold further
payment of Funds on the basis set out in Schedule A hereto.
6.7.Expenditure of Funds. The Recipient shall expend all Funds by March
31, 2012.
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6.8.GST. The use of Funds is based on the net amount of goods and
services tax to be paid by the Recipient pursuant to the Excise Tax Act
(Canada), net of any applicable rebates.
6.9.Limit on Canada's Financial Commitments. The Recipient may use
Funds to pay up to one hundred percent (100%) of Eligible Costs of an
Eligible Project. However, if the Recipient is receiving money under an
Infrastructure Program in respect of an Eligible Project to which the
Recipient wishes to apply Funds, the maximum federal contribution
limitation set out in any Infrastructure Program contribution agreement
made in respect of that Eligible Project shall continue to apply.
6.10.Withholding Payment. AMO may withhold payment of Funds where
the Recipient is in default of compliance with any provisions of this
Agreement.
6.11.Insufficient funds provided by Canada. If Canada does not provide
sufficient funds to continue the Funds for any Fiscal Year during which
this Agreement is in effect, AMO may terminate this Agreement in
accordance with the terms specified in Section 12.4 of this Agreement.
7. REPORTING REQUIREMENTS
7.1.Annual Expenditure Report. The Recipient shall report in the form in
Schedule D hereto due by March 31St following the Municipal Fiscal Year
on:
a. the amounts received from AMO under this Agreement in respect of
the previous Municipal Fiscal Year;
b. the amounts received from another Eligible Recipient;
c. the amounts transferred to another Eligible Recipient;
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;
g. a listing of all Eligible Projects that have been funded, indicating the
location, investment category, amount of Funds, nature of the
investment and expected outcomes, as identified in Schedule E;
and,
h. an annual Audit Statement prepared by the Recipient's auditor in
accordance with section 5815 of the Canadian Institute of
Chartered Accountants Handbook - Special Reports —Audit
Reports on Compliance With Agreements, Statutes and
Regulations, providing assurance that the terms of the Agreement
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have been adhered to and Funds received by the Recipient have
been spent in accordance with the Agreement.
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 and to be made available publicly in manner
consistent with financial reporting under the Municipal Act, 2001 S.O.
2001 c.25.
a. The Outcomes Report will report in writing on the cumulative
investments made, in a manner to be provided by AMO, including
information on the degree to which these investments have actually
contributed to the objectives of cleaner air, cleaner water and
reduced greenhouse gas emissions.
8. OTHER REQUIREMENTS
8.1. Capital Investment Plan. The Recipient acknowledges and agrees to
undertake and complete, prior to the end of the fourth year of this
Agreement, a Capital Investment Plan.
8.2.Integrated Community Sustainability Plan. The Recipient
acknowledges and agrees that over the life of this Agreement to develop
or enhance an Integrated Community Sustainability Plan, either by itself
or as part of some higher level of agglomeration, as in Schedule G
hereto.
8.3.Public Sector Accounting Board. The Recipient acknowledges and
agrees that prior to March 31, 2010, the Recipient will adopt and use the
accounting rules of the Public Sector Accounting Board, in accordance
with provincial regulations.
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 accepted accounting principles (GAAP) in effect in Ontario.
GAAP will include, without limitation, those principles approved or
recommended from time to time by 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,
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statements, receipts and vouchers in respect of Eligible Projects that
Funds are paid in respect of for three (3) years after the March 31, 2015.
Upon reasonable notice, the Recipient shall submit all records and
documentation relating to the Funds to Canada for inspection or audit.
9.3.External Auditor. Canada may request, upon written notification and
AMO has agreed, to complete and provide to Canada an audit of Eligible
Project. AMO shall require the assistance of an external auditor to carry
out an audit of the material referred to in Section 9.2 of this Agreement. If
so, the Recipient shall, upon request, retain an external auditor
acceptable to Canada and AMO at the Recipient's sole expense. The
Recipient 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 AMO and Canada at the same time that the audit report is given
to the Recipient.
10.INSURANCE AND INDEMNITY
10.1.lnsurance. The Recipient shall put in effect and maintain in full force
and effect or cause to be put into effect and maintained for the period
during which this Agreement is in effect all the necessary insurance that
would be considered appropriate for a prudent Recipient of this type
undertaking a project similar to the Eligible Projects, including, where
appropriate and without limitation, property, construction and errors and
omissions insurance and identifies Canada and AMO as additional
insured for the purposes of the Eligible Projects only.
10.2.Certificates of Insurance. Throughout the term of this Agreement, the
Recipient shall provide AMO with a valid certificate of insurance that
confirms the requirements of Section 10.1.
10.3.AMO not liable. In no event shall Canada and 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; nor
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 Indemnify. The Recipient agrees to indemnify and hold
harmless Canada and AMO, its officers, servants, employees or agents,
from and against all claims and demands, loss, costs, damages, actions,
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suits or other proceedings 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:
a. the Recipient's Eligible Projects;
b. the performance of this Agreement or the breach of any term or
condition of this Agreement by the Recipient, its officers,
employees and agents, or by a Third Party, its officers, employees,
or agents;
c. the performance of this Agreement or the breach of any term or
condition of this Agreement by the Recipient, its officers,
employees and agents, or by a Third Party, its officers, employees,
or agents.
d. the design, construction, operation, maintenance and repair of any
part of all Eligible Projects; and
e. any omission or other wilful or negligent act of the Indemnifier or
Third Party and their respective employees, officers, or agents.
10.5.Exception. Except to the extent to which such claims and demands,
losses, costs, damages, actions, suits, or other proceedings related to the
act or negligence of an officer, employee, or agent of AMO in the
performance of his or her duties.
11.TRANSFER AND OPERATION OF MUNICIPAL INFRASTRUCTURE
11.1.Retain Title. The Recipient shall retain title to, and ownership of, the
Municipal Infrastructure resulting from the Eligible Project for at least ten
(10) years after the Eligible Project completion.
11.2.Repayment. Any time within ten (10) years from the date of completion
of the Eligible Project, the Recipient sells, leases, encumbers or
otherwise disposes of, directly or indirectly, any asset constructed,
rehabilitated or improved, in whole or in part, with funds contributed by
Canada under the terms of this Agreement, other than to Canada,
Ontario, a Municipality, or a Crown corporation of Ontario that is the
latter's agent for the purpose of implementing this Agreement, the
Recipient shall repay Canada on demand, a proportionate amount of the
funds contributed by Canada, as follows:
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Where Eligible Project asset is sold, Repayment of
leased, encumbered or disposed of: contribution
(in current dollars)
Within 2 Years after Eligible Project 100%
completion
Between 2 and 5 Years after Eligible Project 55%
completion
Between 5 and 10 Years after Eligible 10%
Project completion
11.3.Notice. The Recipient shall advise Canada and AMO in writing 120
days in advance and at any time during the ten (10) years following the
completion of an Eligible Project if any asset constructed, rehabilitated, or
improved in whole or in part with Funds is sold, discharged or alienated in
any way other than to Canada.
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 material term in this Agreement. AMO will not declare in
writing that an event of default has occurred unless it has consulted with
the Recipient. Each and every one of the following events is a potential
"Event of Default":
a. Failure by the Recipient to deliver an Annual Expenditure Report,
Audit Report or the Outcomes Report.
b. Delivery of an Annual Expenditure Report or Audit Report that
discloses non-compliance with any condition, undertaking or
material term in this Agreement.
12.2.Waiver. AMO may withdraw Event of Default if the Recipient, within
thirty (30) days of receipt of the notice, either correct the condition or
event or demonstrate, to the satisfaction of AMO that it has taken such
steps as are necessary to correct the condition.
12.3.Remedies on default. If AMO declares that an Event of Default has
occurred, after thirty (30) days of declaration, it may immediately exercise
one of the following remedies:
a. In the case of default under Subsection 12.1 a., 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.
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b. In the case of any other default, AMO will suspend its obligation to
pay Funds related to the event of default pending HMO's
satisfaction that the default has been cured.
13.CONFLICT OF INTEREST
13.1.No conflict of interest. No member of the House of Commons, the
Senate of Canada, the Legislature of the Province of Ontario or AMO
Board of Directors will be admitted to any share or part of any Contract
made pursuant to this Agreement or to any benefit arising therefrom.
14.NOTICE
14.1.Notice. Any notice, information or document provided for under this
Agreement will be effectively given if delivered or sent by letter, postage
or other charges prepaid, or by facsimile or email. Any notice that is
delivered will have been received on delivery; and any notice mailed shall
be deemed to have been received on the eighth (8) calendar day
following the day on which it was mailed.
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:
a. If to AMO:
Executive Director
Federal Gas Tax Agreement
Association of Municipalities of Ontario
393 University Avenue, Suite 1701
Toronto ON M5G 1 E6
Telephone: (416) 971-9856
Facsimile: (416) 971-6191
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b. If to the Recipient:
Frank Wu
Chief Administrative Officer
Municipality of Clarington
40 Temperance St.
Bowmanville, ON L1 C 3A6
Telephone: (905) 623-3379
Facsimile: (905) 623-5717
15.MISCELLANEOUS
15.1.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.
15.2.No waiver. The failure of AMO to insist in one or more instances on
performance by the Recipient of any of the terms or conditions of this
Agreement shall not be construed as a waiver of AMO's right to require
further performance of any such terms or conditions, and the obligations
of the Recipient with respect to such performance shall continue in full
force and effect.
15.3.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.
15.4.Survival. The following schedules, sections and provisions of this
Agreement shall survive the expiration or early termination hereof:
Sections 5, 7, 9.3, 10.4, 10.5, 11, 12.3, 15.7 and Schedule G .
15.5.AMO and Recipient independent. Nothing in this Agreement and no
action by the Parties will establish or be deemed to establish a
partnership, joint venture, principal-agent relationship, or employer-
employee relationship in any way or for any purpose with Canada or AMO
whatsoever.
15.6.No Authority to Represent. Nothing in this Agreement is to be
construed as authorizing one Party to contract for or to incur any
obligation on behalf of the other or to act as agent for the other. Nothing
in this Agreement is to be construed as authorizing any Recipient or any
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Third Party to contract for or to incur any obligation on behalf of either
Party or to act as agent for either Party.
15.7.Debts Due to AMO. Any amount owed to Canada under this
Agreement will constitute a debt due to AMO, which the Recipient will
reimburse forthwith, on demand, to AMO.
15.8.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 Costs
Schedule C Impact of Investment on Sustainability Outcomes for
Local Roads and Bridges
Schedule D Annual Expenditure Report
Schedule E Outcome Indicators
Schedule F Communications
Schedule G Integrated Community Sustainability Plans
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.
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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 Clarington
By:
Affix Name: Date
Sea orate Title: n ' n„.x- Mayor
Nar� Date
Title glt L furl®, Cleat,
THE ASSOCIATION OF MUNICIPALITIES OF ONTARIO
By:
f
Affix
Corporate
Seal Name: Pat Vanini Date
Title: Executive Director
In the presence of:
�!
W ness�
N me: Nancy Plumridge Da e
Ti le: Director of Admini _at
and Business Development
17
SCHEDULE A
SCHEDULE OF FUND PAYMENTS
RECIPIENT'S NAME. Municipality of Clarington
The following represents the minimum Funds and schedule of payments
over the life- of this Agreement.
Year Schedule of Fund Payments
July 15th November 15th
2005 $680,859.33
2006 $340,429.66 $340,429.67
2007 $453,855.53 $453,855.54
2008 $567,281.41 $567,281.40
2009 $1,134,562.81 $1,134,562.82
18
SCHEDULE B
ELIGIBLE COSTS
Eligible Project Costs
1. Eligible Costs are all direct costs which are in Canada's opinion:
a. properly and reasonably incurred and paid by the Recipient and no
other person; and
b. paid under a contract for goods and services necessary for the
implementation of an Eligible Project.
2. Eligible costs may include only the following:
a. the capital costs of acquiring, constructing, renovating or rehabilitating
a tangible capital asset and any debt financing charges related thereto;
b. the fees paid to professionals, technical personnel, consultants and
contractors specifically engaged to undertake the surveying, design,
engineering, manufacturing or construction of a project infrastructure
asset and related facilities and structures;
c. the costs of environmental assessments, monitoring, and follow-up
programs as required.by the Canadian Environmental Assessment Act;
or a provincial equivalent;
d. the costs related to strengthening the ability of municipalities to
enhance or develop Integrated Community Sustainability Plans.
3. Employee and Equipment Costs
a. In the case of Recipients that are remote municipalities the out of
pocket costs (not overhead) related to employees or equipment may
be included in its Eligible Costs under the following conditions:
i. the Recipient has determined that it is not economically feasible
to tender a contract;
ii. employees or equipment are employed directly in respect of the
work that would have been the subject of the contract; and
iii. the arrangement is approved in advance and in writing by the
Oversight Committee.
4. Administration Costs
a. That portion of Funds representing interest earned may be used to pay
for administration costs related to the implementation of the
Agreement.
Ineligible Project Costs
5. Costs related to the following items are ineligible costs:
a. Eligible Project costs incurred before April 1St, 2005;
b. services or works that are normally provided by the Recipient or a
related party;
19
c. salaries and other employment benefits of any employees of the
Recipient or related party except as indicated in Section 3 of Schedule
B above;
d. a Recipient's overhead costs, its direct or indirect operating or
administrative costs, and more specifically its costs related to planning,
engineering, architecture, supervision, management and other
activities normally carried out by its applicant's staff;
e. costs of feasibility and planning studies for individual Eligible Projects;
f. taxes for which the Recipient is eligible for a tax rebate and all other
costs eligible for rebates;
g. costs of land or any interest therein, and related costs;
h. cost of leasing of equipment by the Recipient except for as indicated in
Section 3 of Schedule B above;
i. routine repair and maintenance costs;
j. legal fees;
k. administrative costs incurred by the Recipient as a result of
implementing this Agreement, subject to Section 4 of Schedule B
above; and
I. audit and evaluation costs.
20
SCHEDULE C
IMPACT OF INVESTMENT ON SUSTAINABILITY OUTCOMES FOR LOCAL
ROADS AND BRIDGES
PROJECT DOCUMENTATION
Municipal Name
Municipal Contact Name:
Position:
Municipal mailing address:
Telephone number:
Fax number:
e-mail:
Project Description (type of
project (i.e. road resurfacing, road
or structure rehabilitation, road
drainage improvements, traffic
signal installation, installation of
turning lanes))
Project Location (road name,
bridge name, start & end point, lot
& concession — attach key plan if
available)
Project Rationale (benefits and
beneficiaries)
Outputs (describe which of the
outputs are met by this project )
Other Benefits (if the project
benefits are not included in the list
of outputs defined in this
Schedule C, provide the rationale
and the outcomes for the project-
i.e. describe how the project will
contribute to cleaner air, cleaner
water, reduced greenhouse gas
emissions.)
Estimated Project Cost
Expected Outcomes-Outputs
(provide measurements of the
outputs)
Notes:
1. This Schedule must be completed in accordance to instructions provided in "Transfer of
Federal Gas Tax Revenues Under the New Deal for Cities and Communities Municipal
Funding Agreement Guide"which will be updated once "output measures" and "outcome
measures"contained in Schedule E of this Agreement have been developed, and
approved by the Oversight Committee.
21
2. Projects using Funds must follow the requirements of this Agreement as outlined in
Schedule C hereto and are subject to audit.
3. Recipients are responsible for reporting on Eligible Project outcomes set out Schedule E
of this Agreement and subject to Section 7.2 of this Agreement.
Outcomes and Outputs:
1. Projects involving the restoration and rehabilitation of existing assets
in order to extend the asset lifespan by several years i.e. resurfacing
existing roadways and structure rehabilitation.
2. Projects incorporating significant quantities of recycled and reclaimed
materials i.e. cold-in-place pavement recycling, expanded asphalt recycling
and granular base reclamation.
3. Projects which significantly reduce travel times and distances i.e. new
roads and bridges that reduce congestion, increasing travel speeds on the
road network, create travel time savings and minimize travel distances.
4. Installation of turning lanes i.e. construction of left turn lanes, right turn
lanes, left turn slip around lanes, and right turn tapers.
5. Traffic signal installation, traffic signal upgrading and traffic siqnal co-
ordination proiect i.e. installation of new traffic signals, upgrading traffic
signal installations, and projects to co-ordinate the timing of traffic signals in
urban areas.
Note: If the Eligible Project is not one of the above outputs, the Recipient must
provide the rationale for including the Eligible Project including how the Eligible
Project will achieve the outcomes of cleaner air, cleaner water, and reduced
greenhouse gases and how the outcomes will be met.
22
SCHEDULE D
ANNUAL EXPENDITURE REPORT
Annual Cumulative
(:lea ga�ry� 000to D r� ,r004fz or Eligible ro�ect � � ,�� i rs
ate ones onl
0.00
Aeye(o
1� pmentCharges� a 0.00
'` �R.�
, Sor4GovernmentFunding 0.001
..F�,.,��- ��. ^
tat�ler Non'Mlinq al Sources 0.00a
13 z
Base A ount
m 0.00x
(; •—-- n' fi=r s r"a` '3- .,, .3 �.r �` „ -s,
Q enin balance of Uns ent Fundln 0.00 ' 0 00
p g pgsK
`
Received from AM 0 0.00 � � X0,06.
_Mpg
PLUS Received From Eligible Recipient 0.00 0 00
AVE
�'";,s 4:...v'--.e �'e'`` . r•�" ,�, r� �r � ..rte" 'i �"3^.
LESS Transferreci to Eligible Recipient s 0.00
hA
MX
W'__Qoe 'zap �-
Interest Earne 3 0.0040 00
LESS rExpb' lb res on Eligible f, 0.00 '0 0
�` CapaGity Bulpiri g 3 z n
0.00
;, V bb
Energy Systems a 0.00 Q 0 00
VX5 "17
Local Roads and Badges `' 0.00 0.,W
ZV 4M,MINE P�I c Tra isit ` ' 0.00 M :'110'6W
00
24 1 Solid Waste ' z 0.00 X090
z
IN
Wastewater " r 0.00 ` Q 00
Water 42WRM 3 f 0.00s 0 00
% A s,
'-
Ciosing Balance of Unspent Funding ' ° 0.00 0 00
23
SCHEDULE D
ANNUAL EXPENDITURE REPORT (cont'd)
PROGRESS REPORT:
PROJECT DETAILS:
i.e. Project title, location, investment category, amount of Funds, nature of the investment and
expected outcomes.
24
SCHEDULE E
OUTCOME INDICATORS
The impact of the use of the Funds will be measured through a set of core
indicators, to be developed by the Oversight Committee and linked to the
following outcomes and outputs:
Outcomes:
a) Cleaner Air: [DETERMINE INDICATOR]
b) Cleaner Water: [DETERMINE INDICATOR]
c) Lower Greenhouse Gas Emissions (GHGs): [DETERMINE
INDICATOR]
Outputs:
a) Community Energy Systems: [DETERMINE INDICATOR]
b) Public Transit Infrastructure: [DETERMINE INDICATOR]
c) Water Infrastructure: [DETERMINE INDICATOR]
d) Wastewater Infrastructure: [DETERMINE INDICATOR]
e) Changes in effluent quality [DETERMINE INDICATOR]
f) Solid waste: [DETERMINE INDICATOR]
g) Local Roads and Bridges: [DETERMINE INDICATOR]
h) Capacity Building: [DETERMINE INDICATOR]
25
SCHEDULE F
COMMUNICATIONS
The Recipient shall:
a. ensure all communications by the Recipient referring to projects
funded under this Agreement will clearly recognize Canada's
investments;
b. ensure permanent signage at the location of projects receiving
investments under this Agreement, prominently identifying the
Government of Canada's investment and including the Canada
wordmark. Where there is no fixed location for signage, such as
a transit vehicle, a prominent marker will recognize the
Government of Canada's contribution. All signage/plaques will
be located in such a way as to be clearly visible to users, visitors
and/or passersby;
c. regularly report to the public on the outcomes of the investments
entered into under this Agreement, including through the
Outcomes Reports described in this Agreement;
d. ensure the timing of public events shall be sufficient to allow for
all orders of government to plan their involvement. The
Recipient shall provide a minimum of 21 days notice of an event
or announcement;
e. unless otherwise arranged, the Recipient shall pay their own
costs associated with their communications activities;
f. receive appropriate recognition in communications materials;
and,
g. joint communications material and signage will reflect
Government of Canada communications policy, including the
Official Languages Act(Canada), and federal-provincial/territorial
identity graphics guidelines.
26
SCHEDULE G
INTEGRATED COMMUNITY SUSTAINABILITY PLANS
Municipalities in Ontario operate with a sophisticated and comprehensive
statutory and regulatory framework and are accountable to their residents for all
aspects of municipal policy making, including operations and capital investment
activities.
Ontario has demonstrated its leadership in sustainability planning through its
well-established land-use planning and initiatives to protect the environment and
provide safe drinking water in Ontario.
Municipalities, through their Official Plans, under the Ontario Planning Act, strive
to reflect environmental objectives which are implemented through their
municipal planning decisions, municipal capital plans, strategic plans and
sustainability plans. As such, Municipalities have demonstrated their
commitment to sustainability.
The purpose of the Integrated Community Sustainability Plan is to enhance or
build upon existing planning instruments and processes.
Over the life of this Agreement, Recipients will be required to demonstrate'
through existing planning instruments and processes or through the creation of
new planning document that the Municipality has:
• a co-ordinated approach to community sustainability (e.g., linkages of various
plans, planning and financial tools that contribute to sustainability objectives);
• reflected and integrated social, cultural, environmental and economic
sustainability objectives in community planning;
• collaborated with other Municipalities where appropriate to achieve
sustainability objectives; and,
• engaged residents in determining a long-term vision for the Municipality.
27
CANADA - ONTARIO MUNICIPAL RURAL INFRASTRUCTURE FUND ("COMRIF")
INITIATIVE
FUNDING AGREEMENT FOR INFRASTRUCTURE PROJECTS
Ministry of Municipal Affairs and Housing
File Number: 11845
THIS AGREEMENT made in quadruplicate as of the _ day of
,200_0
BET WEE N:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
as represented by the Minister of Agriculture, Food and Rural Affairs
(referred to herein as the "Ministry")
AND:
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
(referred to herein as the "Recipient")
WHEREAS the Government of Ontario is investing in Ontario's infrastructure;
AND WHEREAS the purpose of COMRIF is to improve and renew public infrastructure in
Ontario's small urban and rural communities with populations of less than 250,000;
AND WHEREAS the priority for COMRIF is improving water, sewage treatment, waste
management and local roads and bridges;
AND WHEREAS the objectives for COMRIF include ensuring that sustainable infrastructure
investments enhance and renew Ontario's aging public infrastructure, improve the quality of the
environment; protect the health and safety of citizens; support long-term economic growth; and
build strong, sustainable communities by giving municipalities the tools they need.
AND WHEREAS Recipients under COMRIF may choose to apply for funding for Projects in the
categories of water, wastewater, waste management, local roads and bridges, public transit,
cultural, recreation, tourism, environmental energy improvements and connectivity;
AND WHEREAS this Agreement defines the terms and conditions of a financial contribution to
assist with the Project under COMRIF which is being administered by the Ministry;
1
NOW THEREFORE in consideration of the mutual covenants and agreements herein contained
and other good and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties covenant and agree as follows:
This Agreement, including:
Schedule "A" - General Terms and Conditions
Schedule "B" - Description of the Project
Schedule "C" - Eligible Costs
Schedule "0" - Budget
Schedule "E" - Project Schedule (Milestones)
Schedule "F" - Financial Assistance
Schedule "G" - Federal Requirements
Schedule "H" - Additional Provisions
Schedule "I" - Communications Requirements
Schedule "J" - Cash Flow Report
Schedule "K" - Progress Report
Schedule "l" - Claim Report
Schedule "M" - Final Report
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.
IN WITNESS WHEREOF, the Ministry and the Recipient have respectively executed and
delivered this Agreement on the date set out above.
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
as represented by the Minister of Agriculture, Food and Rural Affairs
by:
Name: Leona Dombrowsky
Title: Minister
Date
RECIPIENT'S NAME: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
by:
Na~~n -
Title: Mayo
Or -\a~ dY. ";:taaS-
.
Date
Affix
Corporate
Seal
t:Jc AC)bet' "2'-1. ~oos
Date
2
SCHEDULE" A"
GENERAL TERMS AND CONDITIONS
SECTION 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 ascribed to them
below unless the subject matter or context is inconsistent therewith:
"Act" means the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as
amended.
"Adjust the Financial Assistance" means adjust the amount of the Financial Assistance on the
Project or the amount of financial assistance for any other project(s) of the Recipient under the
COMRIF Initiative, or any other provincial program(s) or initiative(s) (either current or future),
and/or require repayment for some or all of the Financial Assistance of the Project in an amount
to be determined by the Ministry and within the period specified by the Ministry.
"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.
"Allowable Financial Assistance" has the meaning given to it in Section 8.1 of this Agreement.
"Budget" means the Project budget set out in Schedule "0" hereto.
"Business Day" means any day on which Government of Ontario offices generally are open for
business in the Province of Ontario.
"Cash Flow Report" has the meaning given to it in Section 6.1 of this Agreement.
"Claim Report" has the meaning given to it in Section 6.2 of this Agreement.
"Claims Submission" has the meaning given to it in Section 6.2 of this Agreement.
"Communication Requirements" means the communication requirements set out in Schedule
"I" hereto, or as directed by the Ministry from time to time.
"COMRIF Initiative" has the meaning given to it on the first page of this Agreement.
"Consultant" means any consultant, engineer, contractor, project manager, architect or other
service provider, as the case may be, retained by the Recipient to undertake any part of the
work related to the Project.
"Contract" means a contract between a Recipient and a third party at arm's length whereby the
latter agrees to provide a product or service to the Project in return for financial consideration
that may be claimed as an Eligible Cost.
3
"Crown Agency" means a crown agency as defined in the Crown Agency Act (Ontario).
"Eligible Cost" has the meaning given to it in Section 3 of this Agreement and Schedule "C".
"End of Financial Assistance Date" means March 31, 2010.
"Environmental Contaminant" means any hazardous or toxic substance or material including,
without limitation, products of waste, contaminants, pollutants, dangerous substances, noxious
substances, toxic substances, hazardous wastes and flammable, explosive or improperly
handled friable materials.
"Environmental Laws" means all applicable federal, provincial or municipal laws, regulations,
by-laws, orders, rules, policies or guidelines respecting the protection of the natural
environment, public or occupational health or safety, and the manufacture, importation,
handling, transportation, storage, disposal and treatment of Environmental Contaminants and
include, without limitation, the Environmental Protection Act (Ontario), the Environmental
Assessment Act (Ontario), the Ontario Water Resources Act, the Canadian Environmental
Protection Act 1999, the Canadian Environmental Assessment Act, the Fisheries Act (Canada)
and the Navigable Waters Protection Act (Canada).
"Event of Default" has the meaning given to it in Section 15 of this Agreement.
"Expiration Date" means March 31, 2010.
"Federal Government" means Her Majesty the Queen in right of Canada.
"Federal Licensed Marks" has the meaning given to it in Section 6 of Schedule "G" to this
Agreement.
"Federal Maximum Financial Assistance" has the meaning set out in Schedule "F" hereto.
"Final Report" has the meaning given to it in section 6.3 of this Agreement.
"Final Report Date" means December 31,2009.
"Financial Assistance" means the funds contributed by the Senior Government to be advanced
by the Ministry to the Recipient pursuant to this Agreement.
"Fiscal Year" means the period beginning on April 1 of a year and ending on March 31 of the
following year.
"Generally Accepted Accounting Principles" means Canadian Generally Accepted
Accounting Principles as adopted by the Canadian Institute of Chartered Accountants,
applicable as at the date on which such calculation is made or required to be made in
accordance with Generally Accepted Accounting Principles.
"Government of Ontario" means Her Majesty the Queen in right of Ontario.
4
"Infrastructure" means publicly or privately owned fixed capital assets in Ontario for public use
or benefit.
"Licensed Marks" has the meaning given to it in Section 13 of Schedule "A" to this Agreement.
"Local Government" means a "municipality" as defined in the Municipal Act, 2001 (Ontario) and
includes a local board of a municipality and a board, commission or other local authority
exercising any power with respect to municipal affairs or purposes in an unorganized township,
but excludes municipalities having a population in excess of 250,000.
"Maximum Financial Assistance" has the meaning set out in Section 4.5 and Schedule "P'
hereto.
"Ministry" has the meaning given to it on the first page of this Agreement.
"Ontario Maximum Financial Assistance" has the meaning set out in Schedule "F" hereto.
"OSTAR" means the Ontario Small Town and Rural Development Infrastructure initiative under
the Canada-Ontario Infrastructure Program.
"Payment Certifier" means a payment certifier as defined in subsection 1 (1) of the Construction
Lien Act (Ontario).
"Progress Report" has the meaning given to it in Section 6.2 of this Agreement.
"Project" means the project described in Schedule "B" hereto.
"Project Schedule" means the schedule set out in Schedule "E" hereto.
"Recipient" has the meaning given to it on the first page of this Agreement.
"Senior Government" means the Ministry and the Federal Government collectively.
"Substantially Performed" has the meaning set out in and shall be determined in accordance
with subsection 2(1) of the Construction Lien Act (Ontario).
"Total Eligible Costs" has the meaning set out in Schedule "P' hereto.
1.2 Herein, etc. The words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular schedule, article,
section, paragraph or other subdivision of this Agreement.
1.3 Currency. Any reference to currency is to Canadian currency and any amount
advanced, paid or calculated is to be advanced, paid or calculated in Canadian currency.
1.4 Statutes. Any reference to a statute is to such statute and to the regulations made
pursuant to such statute as such statute and regulations may at any time be amended or
modified and in effect and to any statute or regulations that may be passed that have the
5
effect of supplementing or superseding such statute or regulations.
1.5 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.
1.6 Ministry Approvals. Any reference to, or requirement for, the approval of the Ministry
in this Agreement or in any schedule hereto shall be deemed to require the prior and
express written approval of the Ministry.
SECTION 2
TERM OF AGREEMENT
2.1 Term. 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 the Expiration Date.
2.2 End of Financial Assistance Date. Notwithstanding anything in this Agreement and
regardless of the Project's state of completion, the Ministry shall not be obligated to
provide Financial Assistance under this Agreement after the End of Financial Assistance
Date.
SECTION 3
ELIGIBLE COSTS
3.1 Eligible Costs. In order for a cost to be eligible for Financial Assistance pursuant to this
Agreement (an "Eligible Cost"), the cost must be in accordance with Schedule "C", Part
C.1 and be specifically identified in Schedule "0", except where otherwise expressly
approved in writing by the Ministry. For greater certainty, where Schedule liB" identifies
a portion of the works that are specifically excluded from the description of the Project
under this Agreement, the costs associated with that portion of the works are not eligible.
3.2 Discretion of Ministry. Subject to Section 3.1, the eligibility of any items not listed in
Schedule "C" to this Agreement will be determined in accordance with Ministry policies
and guidelines. The final eligibility of items claimed is at the sole discretion of the
Ministry. The Recipient should consult with Ministry staff when in doubt over specific
items prior to incurring costs.
3.3 Retention of Receipts. The Recipient shall retain all evidence (such as invoices,
receipts, etc.) of payment related to Eligible Costs and such supporting documentation
must be available to the Ministry when requested and maintained by the Recipient for
audit purposes.
3.4 Ineligible Costs. Notwithstanding anything else contained herein, the costs that are not
eligible for Financial Assistance pursuant to this Agreement are set out in Schedule "C",
Part C.2.1 (Ineligible Costs).
6
3.5 Deemed ineligible. The Recipient acknowledges that the Ministry's fiscal year ends on
March 31 in each year, and that should an Eligible Cost not be submitted by the
Recipient for payment of Financial Assistance before March 31 of the year following the
fiscal year in which it was incurred, such Eligible Cost shall be deemed ineligible for
Financial Assistance.
3.6 Clarification. For clarity, the Recipient hereby expressly acknowledges that the
inclusion of an item in the Budget does not necessarily mean that such item is an
Eligible Cost. Where there is a conflict between the Budget and this Article, the
provisions of this Article shall prevail.
SECTION 4
FINANCIAL ASSISTANCE
4.1 Use of Financial Assistance. The Financial Assistance is intended for and shall be
used only for Eligible Costs.
4.2 Basis of payout of Financial Assistance. The Financial Assistance will be provided
by the Ministry to the Recipient on the basis set out in Schedule "F".
4.3 Semi-Annual Reporting. The Recipient is required to submit semi-annual cashflow
reports to the Ministry pursuant to Section 6.1 prior to the Ministry releasing any
Financial Assistance.
4.4 Funds advanced. If Financial Assistance is provided to the Recipient by the Ministry
prior to the Ministry receiving evidence that the associated Eligible Costs have already
been paid by the Recipient, then such Financial Assistance, including all interest earned
thereon, shall be deemed to remain the property of the Ministry and must be held by the
Recipient in trust for the Ministry in an interest bearing account pending payment of
Eligible Costs. Without limitation, any payment of Financial Assistance that is made to
the Recipient without the requirement of the Recipient first providing the Ministry with
either a Progress Report or a Final Report must meet the requirements of this Section.
4.5 Maximum Financial Assistance. The total amount of Financial Assistance provided to
the Recipient shall in any event be no greater than the Maximum Financial Assistance.
4.6 Excess funds. Where actual costs are lower or appear likely to be lower than the total
eligible expenditures identified in the Budget, or where additional funding is secured from
other government sources such that the funds available to the Recipient for the Project
(other than the Financial Assistance) exceed the Maximum Financial Assistance, the
Recipient shall immediately notify the Ministry. The Ministry may, in its sole discretion,
Adjust the Financial Assistance on the Project.
4.7 Interdependent Projects. Where implementation of the Project is dependent on
completion of a project by others and the interdependent project is not completed by
others in whole or in part, the Ministry may, in its sole discretion, Adjust the Financial
Assistance for the Project.
7
4.8 Recipient not carrying out Project. The Recipient shall immediately notify the Ministry
if it does not intend to carry out the Project in whole or in part as specified in Schedule
"B" in which case the Ministry may, in its sole discretion, Adjust the Financial Assistance
for the Project.
4.9 New Information. In the event of new information, errors, omissions or other
circumstances affecting the determination of the amount of Financial Assistance under
this Agreement, the Ministry may, in its sole discretion, Adjust the Financial Assistance
for the Project.
4.10 Alternatives to Project. If the Recipient becomes aware of any alternatives to the
Project that are more cost effective (for example, an area/joint servicing scheme), the
Recipient shall immediately notify the Ministry, in which case the Ministry may, in its sole
discretion, Adjust the Financial Assistance. Likewise, if the Ministry becomes aware of
any alternatives to the Project that are more cost effective, the Recipient will be notified
and the Ministry may, in its sole discretion, Adjust the Financial Assistance.
4.11 GST. The Financial Assistance is based on the net amount of goods and services tax to
be paid by the Recipient pursuant to the Excise Tax Act (Canada), net of any applicable
rebates.
4.12 Withholding payment. The Ministry may, in its sole discretion, withhold payment of
Financial Assistance where the Recipient is in default in obtaining any necessary
permits, approvals or licenses applicable to the Project or is in default of compliance with
any provisions of this Agreement or any applicable legislation.
4.13 Insufficient funds provided by the Legislature. If, in the opinion of the Ministry, the
Legislative Assembly of Ontario does not provide sufficient funds to continue the
Financial Assistance for any fiscal year during which this Agreement is in effect, the
Ministry may terminate this Agreement in accordance with the terms specified in Section
15.5 of Schedule "A" of this Agreement.
SECTION 5
PROJECT AWARD, MANAGEMENT AND COMPLETION
5.1 Recipient fully responsible. The Recipient shall be fully responsible for the
undertaking, implementation and completion of the Project and shall retain any and all
Consultants reasonably required to undertake a project of the size, scope and
complexity of the Project. Where implementation of the Project is dependent on
completion of a project by others, the Recipient shall be fully responsible for obtaining
any assurances that it may require from others in relation to the implementation of the
Project by the Recipient.
5.2 Ministry not responsible for implementation. The Ministry shall not be responsible in
any way whatsoever for the undertaking, implementation and completion of the Project
or any interdependent project of others.
5.3 Ministry not responsible for costs, etc. The Ministry shall not be responsible for any
costs associated with the operation, maintenance and repair of the Project nor for any
8
claims, proceedings or judgments arising from the tender and bidding process.
5.4 Behaviour of Recipient. The Recipient shall carry out the Project in an economical and
businesslike manner, in accordance with this Agreement and in particular, but without
limitation, in accordance with the Budget and the Project Schedule subject to any
reasonable changes that the Ministry may agree to or require from time to time in writing.
5.5 Competitive process. The Recipient shall acquire and manage all equipment, services
and supplies required for the Project through a transparent, competitive process that
ensures the best value for funds expended. For equipment, services and supplies, the
estimated cost of which exceeds $25,000.00, the Recipient shall obtain at least three
written quotes unless the Ministry gives prior written approval and:
a) the expertise the Recipient is purchasing is specialized and is not readily
available; or
b) the Recipient has recently researched the market for a similar purchase and
knows prevailing market costs for the equipment, services or supplies
purchased.
5.6 Competitive tender. Except as otherwise approved in writing by the Ministry, all
portions of the construction component of the Project (including materials and
equipment) shall be competitively and openly tendered, in the opinion of the Ministry, to
competent contractors capable of completing the construction component of the Project,
and the Contract must be awarded to the lowest qualified bidder or, where the bid price
is not the sole specified selection criterion, the highest ranked bidder.
5.7 Trade Agreements. If the Recipient is subject to any provincial or federal trade
agreements to which the Government of Ontario is a party, the Recipient shall comply
with the applicable requirements of such trade agreements. In particular, and without
limitation, if the Recipient is subject to Annex 502.4 of the Agreement on Internal Trade,
the Recipient shall comply with all of the applicable requirements of that Annex. In the
event of any conflict between the requirements of Sections 5.5 and 5.6 of this
Agreement and the requirements of this Section 5.7, the requirements referenced in this
Section 5.7 shall apply.
5.8 Long-term capital management plan. The Recipient shall prepare and update
annually thereafter a long-term capital asset management plan which outlines how the
Recipient intends to meet its financial and other commitments for maintaining the
Infrastructure on an ongoing basis, including plans to recover the full operating costs
through service charges where appropriate. Upon request, the Recipient shall provide to
the Ministry a copy of its then current long-term capital management plan.
5.9 Final claims. The Recipient shall submit its final claims with the required
documentation for approval, cost reviews, audits and settlement within three (3) months
of completion of the Project and no later than the Final Report Date or such later date as
is specified in writing by the Ministry. Upon completion of the cost reviews, audits and
settlement, the Ministry shall not be obligated to consider any further claims in relation to
9
the Project. The Recipient shall also submit, upon request by the Ministry, the required
documentation for approval, cost reviews and audits on an interim basis.
5.10 Commencement of Project. The Recipient shall begin the Project within six (6) months
after the date of this Agreement, failing which this Agreement may be terminated
pursuant to Section 15.
5.11 Contracts. The Recipient shall ensure that all Contracts:
a) are consistent, and do not conflict, with this Agreement;
b) incorporate the relevant provisions of this Agreement to the extent possible;
c) conform to all policies and procedures issued by the Senior Government for the
COMRIF Initiative;
d) are awarded and managed:
(i) in a way that is transparent, competitive and consistent with value for
money principles; and
(ii) in accordance with all applicable policies and procedures issued by the
Government of Ontario;
e) require that the parties thereto comply with all applicable legislation; and
f) authorize the Ministry and the Federal Government to gather data, perform audits
and monitor the Project as they see fit.
SECTION 6
REPORTING REQUIREMENTS
6.1 Cash Flow Report. The Recipient shall submit semi-annual reports for the Project to the
Ministry on or before February 15th and August 15th of each Fiscal Year outlining the current
cash flow and projections and the Recipient shall follow such administrative procedures as
are specified from time to time by the Ministry. For bridge infrastructure Projects, additional
submissions may be required during the design phase of the Project, as described in
Schedule "H".
6.2 Claims Submission. All Claim Submissions shall include the following reports:
1. Progress Report. The Recipient shall provide the Ministry with a report in the form set
out in Schedule "K" ("Progress Report") that shall contain sufficient information to allow the
Ministry to assess the progress of the Project. The Progress Report shall include:
a) a detailed description of the progress of the Project to the date of the report;
b) particulars of how the Communication Requirements have been implemented or
applied;
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c) a certificate by a Payment Certifier or the chief financial officer of the Recipient
certifying the percentage of the Project completed;
d) details of any variance from the Project, the Budget and/or the Project Schedule; and
e) any other information respecting the Project that may be requested by the Ministry.
2. Claim Report. The Recipient shall provide the Ministry with a report in the form set
out in Schedule "l" ("Claim Report") on the invoices received and paid for the Project as
at the date of the payment request which shall contain sufficient information to allow the
Ministry to assess the eligibility of that portion of the Project for which disbursement is
being requested and the individual Project tasks and Milestones. The Claim Report shall
include:
a) an invoice summary, in the form prescribed by the Ministry;
b) a list of the vendor from which the invoice was received;
c) a description of the type of work performed for each invoice; and
d) when requested, all original invoices and receipts for the Project.
6.3 Final Report. Within three months of the Project becoming Substantially Performed and
no later than the Final Report Date or such later date as is specified in writing by the
Ministry, the Recipient shall submit a final report (the "Final Report") for the Project to
the Ministry in a form satisfactory to the Ministry and the Recipient shall follow such
administrative procedures as are specified from time to time by the Ministry. The Final
Report shall include:
a) a detailed description of the Project as completed, including photographs;
b) particulars of how the Communication Requirements have been implemented or
applied;
c) a final unaudited financial statement showing Project expenditures and revenue,
prepared by a qualified person;
d) a certificate by a Payment Certifier or the chief financial officer of the Recipient
certifying that the Project has been Substantially Performed;
e) an invoice summary, in the form prescribed by the Ministry;
f) a final cost summary in the form appended as Schedule M hereto;
g) when requested, all original invoices and receipts for the Project;
h) details of any variance from the Project, the Budget and/or the Project Schedule;
and
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i) any other information respecting the Project that may be requested by the Ministry,
including, but not limited to, audited financial statements.
Upon receipt of the Final Report, the Ministry shall not be obligated to consider any
further claims in relation to the Project.
SECTION 7
RECORDS AND AUDIT
7.1 Separate records. The Recipient shall maintain separate records and documentation
for the Project and keep all records and documentation for six (6) years after the final
settlement of accounts referred to in section 5.9 of Schedule "A" of this Agreement.
Upon request, the Recipient shall submit all records and documentation relating to the
Project including, but not limited to, work authorizations, invoices, time sheets, payroll
records, estimates and actual cost of the activities carried out pursuant to this
Agreement, together with tenders and proposals, final measurements, payment
certificates, change orders, correspondence, memoranda, contracts and amendments
thereto which shall be maintained in accordance with Generally Accepted Accounting
Principles.
7.2 Provide records to Ministry. The Recipient shall provide to the Ministry, upon request
and at the Recipient's expense (including but not limited to photocopying, electronic
media, transportation and postage, associated staff time, information retrieval and other
office expenses), all records and documentation (including invoice summaries and
certified statement of final costs) of the Recipient and its auditors, contractors, project
managers and Consultants relating to the Project or any other project(s) of the Recipient
under the COMRIF Initiative, or any other provincial program(s), for the purposes of cost
reviews, audits and settlement, as may be required by the Ministry, of the Project or any
other project(s) of the Recipient under the COMRIF Initiative, or any other provincial
program(s). Such material shall be provided to the Ministry and other ministries of the
Government of Ontario as may be requested from time to time, all in a form and manner
satisfactory to the Ministry and other ministries of the Government of Ontario, as
applicable.
7.3 External auditor. The Ministry may require the assistance of an external auditor to
carry out an audit of the material referred to in Sections 7.1 and 7.2 of Schedule "A" of
this Agreement. If so, the Recipient shall, upon request, retain an external auditor
acceptable to the Ministry at the Recipient's sole expense. The Recipient shall ensure
that any auditor who conducts an audit pursuant to this section of the Agreement or
otherwise, provides a copy of the audit report to the Ministry for its consideration at the
same time that the audit report is given to the Recipient.
7.4 Information. The Recipient shall supply to the Ministry, upon request, such information
in respect of the Project and its results including without limitation all contracts and
agreements related to the Project and all plans and specifications related to the Project,
as the Ministry may require. The Ministry and the Federal Government, their respective
agents and employees, including the Ontario Provincial Auditor's Office, shall be allowed
access to the Recipient's premises and staff and to the Project site at all reasonable
times to (i) inspect the progress and monitor the Project; (ii) perform cost reviews and
12
audits on the Project; and (iii) confirm the results of the Project in terms of resolving the
infrastructure problems that cause an immediate and serious problem for human health
or the environment.
7.5 Information condition precedent for payment. If, in the opinion of the Ministry, any of
the information requirements of this Article are not met, the Ministry may, in its sole
discretion, require the information as a condition precedent to any payment in relation to
the Project or any other project(s) of the Recipient under the COMRIF Initiative, or any
other provincial program(s) (either current or future). In addition, the Ministry may, in its
sole discretion, Adjust the Financial Assistance for the Project.
SECTION 8
OVERPAYMENT
8.1 Allowable Financial Assistance. Funds advanced to the Recipient prior to settlement
in accordance with Section 5.9 of Schedule "A" of this Agreement shall not be construed
as a final determination of the amount of Financial Assistance applicable to the Project.
Upon conducting a final cost review or audit of the Project, the Ministry will determine the
final amount of Financial Assistance on the Project (the "Allowable Financial
Assistance"). The Recipient agrees to repay to the Ministry, upon receipt of a written
demand and within the period specified by the Ministry, that portion of the total of the
funds advanced that exceeds the Allowable Financial Assistance applicable to the
Project, as determined by the Ministry, as well as any funds used for a purpose other
than that stated in the terms of this Agreement, as determined by the Ministry.
8.2 Deduction of overpayment. The Ministry may deduct any overpayment of Financial
Assistance pursuant to Section 8.1 made on the Project from financial assistance
payable on any other project(s) of the Recipient under the COMRIF Initiative or any
other provincial program(s) (either current or future). Any overpayment made on any
other project(s) of the Recipient under the COMRIF Initiative or any other provincial
program(s) (either current or future) may in turn be deducted from Financial Assistance
payable on the Project.
8.3 Interest on overpayment. The Ministry reserves the right to demand interest on any
overpayment of Financial Assistance owing by the Recipient under the terms of this
Agreement at the then current interest rate charged by the Government of Ontario on
accounts receivable. The Recipient shall pay the amount of interest owing upon receipt
of a written demand and within the period specified by the Ministry.
SECTION 9
INSURANCE AND BONDING
9.1 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 period during which this Agreement is
in effect, with insurers acceptable to the Ministry:
a) Comprehensive general liability insurance to an inclusive limit of not less than
five million ($5,000,000.00) dollars per occurrence for property, damage, bodily
injury and personal injury including, at least, the following policy endorsements:
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(i) Her Majesty the Queen in right of Ontario as an additional insured
for the purposes of the Project only;
(ii) Cross liability;
(iji) Contractual liability;
(iv) Independent contractors;
(v) Products and completed operations;
(vi) Employer's liability and voluntary compensation;
(vii) 30 day written notice of cancellation;
(viii) Tenants legal liability (if applicable); and
(ix) Non-owned automobile coverage with blanket contractual and
physical damage coverage for hired automobiles; and
b) All the necessary insurance that would be considered appropriate for a prudent
Recipient of this type undertaking a project similar to the Project, including, where
appropriate and without limitation, property, construction and errors and
omissions insurance.
9.2 Certificates of Insurance. Prior to any scheduled payment of Financial Assistance
pursuant to this Agreement and throughout the term of this Agreement, the Recipient
shall provide the Ministry with a valid certificate of insurance that references the Project,
confirms the above requirements and identifies major exclusions in the policy.
9.3 Bonding. The Recipient shall put in effect and maintain in full force and effect or cause
to be put into effect and maintained in full force and effect during the term of this
Ag reement:
a) a performance bond in the amount of 100% of the contract price for any
construction Contract related to the Project and which is for an amount greater
than $150,000 covering the performance of that construction Contract and the
correction of any deficiencies; and
b) a labour and material payment bond in the amount of 50% of the contract price
for any construction Contract related to the Project and which is for an amount
greater than $150,000 covering the payment for labour, material or both.
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SECTION 10
INDEMNITY
10.1 Ministry not liable. In no event shall the Ministry be liable for:
a) any bodily injury, death or property damage 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 the Project; nor
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 or in any way related to this Agreement or the Project.
10.2 Recipient to indemnify. The Recipient agrees to indemnify and hold harmless Her
Majesty the Queen in right of Ontario, Her directors, officers, employees and agents
from and against all suits, judgments, claims, demands, expenses, actions, causes of
action and losses (including, without limitation, reasonable legal expenses and any claim
for lien made pursuant to the Construction Lien Act (Ontario)) and for any and all liability
for damages to property and injury to persons (including death) which Her Majesty the
Queen in right of Ontario, Her directors, officers, employees and agents may incur,
otherwise than by reason of their own negligence or wilful misconduct, as a result of or
arising out of or in relation to: (a) the performance of this Agreement or any breach of the
terms of this Agreement by the Recipient, its officers, servants, employees and agents,
or by a third party, and any of its officers, employees, servants or agents; (b) the ongoing
operation, maintenance and repair of the infrastructure resulting from the Project; or (c)
any omission or other wilful or negligent act of the Recipient, a third party, their
respective employees, officers, servants or agents.
10.3 Further Indemnity. The Recipient further agrees to indemnify and hold harmless Her
Majesty the Queen in right of Ontario, Her directors, officers, employees and agents, for
any incidental, indirect, special or consequential damages, or any loss of use, revenue or
profit, which Her Majesty the Queen in right of Ontario, Her directors, officers, employees
and agents may incur, otherwise than by reason of their own negligence or wilful
misconduct, as a result of or arising out of or in relation to: (a) the performance of this
Agreement or any breach of the terms of this Agreement by the Recipient, its officers,
servants, employees and agents, or by a third party, and any of its officers, employees,
servants or agents; (b) the ongoing operation, maintenance and repair of the infrastructure
resulting from the Project; or (c) any omission or other wilful or negligent act of the
Recipient, a third party, their respective employees, officers, servants or agents.
SECTION 11
TRANSFER AND OPERATION OF INFRASTRUCTURE
11.1 Transfer of ownership. Unless otherwise agreed to by the Senior Government, the
Recipient will retain title to, and ownership of, the Infrastructure resulting from the Project
for at least ten (10) years after Project completion.
15
11.2 Repayment. In the event that at any time within ten (10) years from the date of
completion of the Project, the Recipient sells, leases, encumbers or otherwise disposes
of, directly or indirectly, any asset constructed, rehabilitated or improved, in whole or in
part, with the Financial Assistance contributed under the terms of this Agreement, other
than to Canada, Ontario, a Local Government, or a Crown corporation of Ontario that is
the latter's agent for the purpose of implementing this Agreement, the Recipient hereby
undertakes to repay the Senior Government, on demand, a proportionate amount of the
Financial Assistance, as follows:
Return of contribution
in current dollars
100%
55%
10%
11.3 Notice. At any time during the ten (10) years following the date of completion of the
Project, the Recipient agrees to notify the Ministry in writing of any transaction triggering
the above-mentioned repayment, at least one hundred eighty (180) days in advance.
11.4 Deduction from Financial Assistance. The Ministry may deduct the amount of
Financial Assistance to be repaid under Section 11.2 from Financial Assistance payable
on any other project(s) of the Recipient under the COMRIF Initiative or any other
provincial program(s) (either current or future).
11.5 Infrastructure Operation. The Infrastructure established with the Financial Assistance
from the Ministry shall be used, maintained and operated for a period of at least one half
of the expected useful life of the asset after the completion of the Project as set out in
Schedule "H". Any contravention of this provision shall give the Ministry the right to
Adjust the Financial Assistance.
SECTION 12
CONFLICT OF INTEREST AND CONFIDENTIALITY
12.1 No conflict of interest. The Recipient and its Consultants and any of their respective
advisors, partners, directors, officers, employees, agents and volunteers shall not
engage in any activity or provide any services where such activity or the provision of
such services creates a conflict of interest (actually or potentially in the sole opinion of
the Ministry) with the provision of services under this Agreement. The Recipient
acknowledges and agrees that it shall be a conflict of interest for it to use confidential
information of Her Majesty the Queen in right of Ontario that is relevant to the Project or
otherwise where the Ministry has not expressly authorized such use in writing. For
greater certainty, and without limiting the generality of the foregoing, a conflict of interest
includes a situation where anyone associated with the Recipient is able to benefit
financially from the Project or where such a person owns or has an interest in an
16
organization that is carrying out work related to the Project.
12.2 Disclose potential conflict of interest. The Recipient shall disclose to the Min istry
without delay any actual or potential situation that may be reasonably interpreted as
either a conflict of interest or a potential conflict of interest.
12.3 Freedom of Information and Protection of Privacy Act. The Recipient acknowledges
that the Ministry is bound by the provisions of the Freedom of Information and Protection
of Privacy Act, R.S.O. 1990, c. F.31, as amended.
SECTION 13
COMMUNICATION AND RECOGNITION
13.1 Licensed Marks. The Recipient acknowledges that Her Majesty the Queen in right of
Canada and Ontario is, will be or may be the owner of certain distinguishing marks
comprised of designs, trademarks and official marks which have come or will come to be
associated with COMRIF (all such current and future marks, being the "Licensed
Marks").
13.2 Acknowledgement in advertising and publicity. The Recipient agrees to
acknowledge the Financial Assistance of the Senior Government to the Project in all
advertising and publicity relating to the Project and in any construction signs and in any
temporary or permanent tributes to Project donors by adhering to the Communications
Requirements.
13.3 Use of Licensed Marks. In consideration of receiving the Financial Assistance, the
Recipient agrees to use the Licensed Marks as follows:
a) the Recipient agrees to strictly use the Licensed Marks only as prescribed by the
Communications Requirements and not to use any other mark or trademark in
combination with any of the Licensed Marks without the prior written approval of
the COMRIF Management Committee. The Recipient agrees that it will not alter,
modify, dilute or otherwise misuse the Licensed Marks;
b) the Recipient agrees to submit to the COMRIF Joint Secretariat copies of any
advertisements or promotional materials containing the Licensed Marks for
approval prior to any use thereof and to remove therefrom either any reference to
the Licensed Marks or any element that the COMRIF Joint Secretariat may from
time to time upon reasonable notice designate;
c) the Recipient agrees that it will not state or imply, directly or indirectly, that the
Recipient or the Recipient's activities, other than those permitted by this
Agreement, are supported, endorsed, or sponsored by the COMRIF Joint
Secretariat and upon the direction of the COMRIF Joint Secretariat express
disclaimers to that effect; and
d) the Recipient agrees to promptly inform the COMRIF Joint Secretariat of any
suspected infringement of any Licensed Marks by a third party.
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13.4 Cease using Licensed Marks. Whether or not the Recipient is in breach of this
Agreement, forthwith upon any receipt by the Recipient of a written direction from the
COMRIF Joint Secretariat, the Recipient shall cease using the Licensed Marks, and
without limiting the generality of the foregoing, will remove all signage and remove from
circulation any use or reference to the Licensed Marks.
13.5 Indemnity. The Recipient hereby indemnifies the Government of Ontario against any
and all claims for death, illness, personal injury, property damage, improper business
practices, or loss of any kind where such claims are in whole or in part premised upon
the Recipient's use of the Licensed Marks.
SECTION 14
COVENANTS, REPRESENTATIONS AND WARRANTIES
14.1 Covenants, representations and warranties. The Recipient covenants, represents
and warrants to the Ministry that:
a) it is conducting and shall conduct its business in compliance with all applicable
federal, provincial and municipal laws, and all rules, regulations, by-laws, notices,
orders and approvals;
b) it has authority and any necessary approval to enter into this Agreement and to
carry out its terms;
c) it has or will apply for all permits, approvals, and licenses which are required in
order to carry out the Project including, but not limited to, any approvals lawfully
required under the Planning Act (Ontario), the Building Code Act, 1992 (Ontario),
the Highway Traffic Act (Ontario), the Public Transportation and Highway
Improvement Act (Ontario), the Bridges Act (Ontario) and the Environmental Laws;
d) it validly exists as a legal entity with full power to perform and observe all of the
terms and conditions of this Agreement;
e) where applicable, it has passed by-laws required to undertake the Project;
f) it is now and will continue to be compliant with all Environmental Laws;
g) it owns or has a long-term lease (inclusive of any renewals) for the lands on
which the Infrastructure is or will be located that expires no earlier than ten (10)
years following Project completion;
h) provided that the Recipient is not a municipality or a Crown Agency,
A.
it is not a non-resident of Canada within the meaning of the
Income Tax Act (Canada);
B.
is either a corporation, a partnership or a sole proprietorship
validly in existence; and
C.
is registered and qualified to do business wherever necessary to
18
carry out the Project;
i) it has the experience, financial health and ability to carry out this Project;
j) if the Recipient is a Local Government or a Crown Agency, it has the requisite legislative
authority to carry out the Project;
k) other than the Financial Assistance being provided pursuant to this Agreement,
the Recipient has not and will not use any funds received from Her Majesty the
Queen in right of Ontario or a Crown Agency towards any aspect of the Project.
Notwithstanding the foregoing, the Recipient may use funds received from the
Northern Ontario Heritage Fund for the purposes of carrying out the Project; and
I) all information provided during the COMRIF Initiative application process remains
true, correct and complete in every respect except as set out to the contrary
herein. Without limitation, the Project, Budget and Project Schedule are as set
out herein.
14.2 Representations and warranties true condition precedent for payment. Upon
request, the Recipient shall provide the Ministry with proof of the matters referred to in
this Article. It is a condition precedent to any payment under this Agreement that the
representations and warranties under this Section are true at the time of payment and
that the Recipient is not in default of compliance with any terms of this Agreement.
Where this is not the case, the Ministry may, in its sole discretion, Adjust the Financial
Assistance for the Project.
SECTION 15
DEFAULT, ENFORCEMENT AND TERMINATION
15.1 Event of Default. Each and every one of the following events is an "Event of Default":
a) if in the opinion of the Ministry, the Recipient fails to conform or comply with
any term or covenant contained in this Agreement to be performed or complied
with by the Recipient;
b) if in the opinion of the Ministry any representation or warranty made by the
Recipient in this Agreement or any certificate delivered to the Ministry pursuant
hereto shall be materially untrue in any respect;
c) if an order shall be made or an effective resolution passed for the winding up, or
liquidation or dissolution of the Recipient or the Recipient is otherwise dissolved
or ceases to carry on its operation;
d) if the Recipient uses any of the Financial Assistance for a purpose not authorized
by this Agreement without the prior written consent of the Ministry;
e) if the Recipient admits in writing its inability to pay its debts generally as they
become due, voluntarily suspends transactions of its usual business, becomes
insolvent, bankrupt, makes an assignment for the benefit of its creditors, or a
19
receiver or manager, court appointed or otherwise, is appointed for its assets or if
the Recipient takes the benefit of any statute from time to time in force relating to
bankrupts or insolvent debtors;
f) if in the opinion of the Ministry a material adverse change occurs such that the
viability of the Recipient as a going concern is threatened in the opinion of the
Ministry, acting reasonably;
g) if in the opinion of the Ministry the Recipient ceases to operate;
h) if the Recipient fails to begin the Project within six (6) months after the date of
this Agreement, or, in the opinion of the Ministry, the Recipient has failed to
proceed diligently with the Project or abandons the Project in whole or in part, or
the Recipient is otherwise in default in carrying out any of the terms, conditions
or obligations of this Agreement, except where such failure is due to causes
which, in the opinion of the Ministry are beyond the control of the Recipient;
i) if the Recipient has submitted false or misleading information to the Ministry; or
j) the Recipient and/or any of its Consultants and/or any of their respective
advisors, partners, directors, officers, employees, agents and volunteers has
breached the requirements of Section 12 (Conflict of Interest and Confidentiality).
15.2 Waiver. The Ministry may, at any time, waive any Event of Default which may have
occurred provided that no such waiver shall extend to, or be taken in any manner
whatsoever to affect, any subsequent Event of Default or the right to remedies resulting
therefrom, and that no such waiver shall be, or shall be deemed to constitute, a waiver of
such Event of Default unless such waiver is in writing from the Ministry.
15.3 Remedies on default. Notwithstanding any other rights which the Ministry may have
under this Agreement, if an Event of Default has occurred, the Ministry shall have the
following remedies provided only that in the case of an Event of Default which, in the
opinion of the Ministry in its sole discretion, is curable, the Ministry has first given written
notice of the Event of Default to the Recipient and the Recipient has failed to correct the
Event of Default within 30 days or such period of time as the Ministry may consent to in
writing:
a) the Ministry shall have no further obligation to provide any Financial Assistance
for the Project;
b) the Ministry may, at its option, terminate this Agreement and may, in its sole
discretion, Adjust the Financial Assistance. The total amount of Financial
Assistance shall be immediately due and payable by the Recipient and bear
interest at the then-current interest rate charged by the Government of Ontario
on accounts receivable; and
c) the Ministry may avail itself of any of its legal remedies that it may deem
appropriate.
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15.4 Additional remedies. In addition to the remedies described in Section 15.3, the Ministry
may commence such legal action or proceedings as it, in its sole discretion, may deem
expedient, without any additional notice under this Agreement. The rights and remedies
of the Ministry hereunder are cumulative and in addition to, and not in substitution for, all
other rights or remedies otherwise available to the Ministry.
15.5 Termination without cause. Notwithstanding anything else contained herein, the
Ministry reserves the right to terminate this Agreement without cause upon such
conditions as the Ministry may require, with a minimum of seven (7) days written notice
to the Recipient. If the Ministry terminates this Agreement prior to its expiration, the
Ministry, subject to all of the Ministry's rights under this Agreement, including, without
limitation, the Ministry's right to Adjust the Financial Assistance prior to its expiration,
shall only be responsible for the payment of Financial Assistance on the portion of the
Project completed and Eligible Costs already incurred and paid at the time of such
termination provided that the Recipient provides a report to the Ministry that meets the
requirements of a Progress Report. Such report must be received by the Ministry within
three (3) months of notice of termination being given to the Recipient pursuant to this
Section.
SECTION 16
NOTICE
16.1 Notice. Any demand, notice or communication to be made or given hereunder shall be
in writing and may be made or given by personal delivery or mailed by first class
registered mail, postage prepaid or by transmittal by facsimile, telecopy, email or other
electronic means of communication addressed to the respective parties as follows at the
addresses set out in Schedule "H" attached hereto or to such other person, address,
facsimile number, telecopy number or email address as either party may from time to
time notify the other in accordance with this Section. Any demand, notice or
communication made or given by personal delivery shall be conclusively deemed to
have been given on the day of actual delivery thereof. Any demand, notice or
communication made or given by facsimile, email or other electronic means of
communication, if made or given at a time when it would be received by the recipient
during its normal business hours on a Business Day, shall be deemed to be received at
the time it is sent; otherwise, such electronic communication shall be deemed to be
received on the first Business Day following the transmittal thereof. Any demand, notice
or communication mailed by registered mail shall be deemed to have been received on
the third Business Day following the day on which it was mailed.
16.2 Representatives. The individuals identified pursuant to Section 16.1 above will, in the
first instance, act as the Ministry's or the Recipient's, as the case may be, representative
for the purpose of implementing this Agreement.
SECTION 17
MISCELLANEOUS
17.1 Terms binding. The Recipient shall take all reasonable measures to ensure that its
officers, directors, partners, employees, agents and the Consultant shall be bound to
observe all of the terms and conditions of this Agreement, including, but not limited to all
21
covenants, representations and warranties set out herein. The Recipient shall include in
all of its Contract(s) terms and conditions similar to and not less favourable to the
Ministry than the terms and conditions of this Agreement to the extent that they are
applicable to the work subcontracted, including but not limited to the requirements of
Section 7.4 of Schedule "A" of this Agreement.
17.2 Time of the essence. In the performance and observance of the terms and conditions
of this Agreement, time is of the essence and no extension or variation of this
Agreement shall operate as a waiver of this provision. The Ministry shall not be liable for
any liquidated damages as a result of working days extensions.
17.3 Successors and assigns. This Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective heirs, executors, administrators, successors
and permitted assigns.
17.4 Severability. The validity or enforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provisions hereof and such invalid or
unenforceable provisions shall be deemed to be severable.
17.5 No waiver. The failure by the Ministry to insist in one or more instances on performance
by the Recipient of any of the terms or conditions of this Agreement shall not be
construed as a waiver of the Ministry's right to require further performance of any such
terms or conditions, and the obligations of the Recipient with respect to such
performance shall continue in full force and effect.
17.6 Division of Agreement. The division of this Agreement into schedules, articles,
sections, clauses, paragraphs and the insertion of headings are for the convenience of
reference only and shall not affect the construction or interpretation of this Agreement.
17.7 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.
17.8 Survival. The following schedules, sections and provisions of this Agreement shall
survive the expiration or early termination hereof: Section 4 (Financial Assistance),
Section 6 (Reporting Requirements), Section 7 (Records and Audit), Section 8
(Overpayment), Section 10 (Indemnity), Section 11 (Transfer and Operation of
Infrastructure), Section 12 (Conflict of Interest and Confidentiality), Section 13
(Communications and Recognition), Section 14 (Covenants, Representations and
Warranties), Section 15 (Default, Enforcement and Termination), Section 5.8 (Long-term
capital management plan) and Section 17.11 (Interest) of Schedule "A"; Schedule "G";
Schedule "H" (useful life of Project Infrastructure); and Schedule "I" (the Recipient's
obligation to maintain a permanent plaque in cases where it is necessary to install a
permanent plaque).
17.9 No assignment. This Agreement shall not be assigned by the Recipient. The Ministry
may assign this Agreement on written notice to the Recipient.
22
17.10 No Amendment. This Agreement shall not be varied or amended except by a
document in writing, dated and signed on behalf of the Ministry and the Recipient.
17.11 Interest. The Ministry reserves the right to demand interest on any repayment of
Financial Assistance owing by the Recipient under the terms of this Agreement at the
then-current interest rate charged by the Government of Ontario on accounts receivable.
The Recipient shall pay the amount of interest owing upon receipt of a written demand
and within the period specified by the Ministry.
17.12 Ministry and Recipient independent. Nothing in this Agreement shall be deemed to
constitute the Recipient an employee, servant, agent, partner of or in joint venture with
the Ministry for any purpose whatsoever.
17.13 Recipient cannot represent the Senior Government. The provision of Financial
Assistance to the Recipient pursuant to this Agreement is for the sole purpose of, and is
limited to, carrying out the Project. The Recipient warrants and agrees that under no
circumstances shall it enter into any contract or commitment in the name of or on behalf
of the Ministry and/or the Federal Government. The Recipient acknowledges and
agrees that it is not by the terms of this Agreement or otherwise, granted any right or
authority to assume or create any obligation or responsibility, express or implied, on
behalf of or in the name of the Ministry and/or the Federal Government, to act as an
agent of the Ministry and/or the Federal Government, or to bind the Ministry and/or the
Federal Government in any manner whatsoever other than as specifically provided in
this Agreement.
17.14 Consultants. The Ministry acknowledges that, in connection with carrying out the
Project, the Recipient may engage one or more Consultants. The Ministry
acknowledges and agrees that the Recipient shall have the sole authority and
responsibility for such employees, agents or Consultants, including their hiring and
termination. The Recipient acknowledges and agrees that the Recipient shall be
responsible for all acts and actions of the Recipient's employees, agents and
Consultants and that all such acts and actions shall be treated as actions of the
Recipient for the purposes of this Agreement.
17.15 Cooperation. The Ministry and the Recipient agree to cooperate with one another and
will be frank, candid and timely when dealing with one another and will endeavour to
facilitate the implementation of this Agreement.
17.16 Data. The Recipient agrees that the Ministry may, in its sole discretion, gather and
compile data required under this Agreement and disclose such data to the Federal
Government.
17.17 Priority. Where there is a conflict between one or more of the schedules of this
Agreement, the following order of priority shall apply: Schedule "A", Schedule "C",
Schedule "B" and all other schedules.
- END OF GENERAL TERMS AND CONDITIONS -
23
SCHEDULE "B"
DESCRIPTION OF THE PROJECT
COMRIF FILE #11845
CLARINGTON
THE CORPORATION OF THE MUNICIPALITY OF
WORK DESCRIPTION:
The Municipality of Clarington proposes to reconstruct six bridges. The work involves
upgrading the approaches, removal of load restrictions on several of the structures,
installation of guiderails and replacement of some culverts.
24
SCHEDULE "C"
ELIGIBLE COSTS
C.1 ELIGIBLE COSTS
C.1.1 Eligible Costs are all direct costs that, in the opinion of the Ministry, are:
a) Properly and reasonably incurred by the Recipient and no other person; and
b) Paid under a Contract for goods or services necessary for the implementation of
the Project.
C.1.2 Eligible Costs may only include:
a) Costs incurred after November 15, 2004 (in respect of a non-OST AR carry-over
Project) OR Costs incurred after May 6, 2004 (in respect of an OST AR carry-over
Project), and no later than March 31,2009, as the case may be;
b) The capital costs of acquiring, constructing or renovating a fixed capital asset;
a) The costs incurred for professionals, technical personnel, consultants and
contractors specifically engaged to undertake the surveying, design, engineering,
manufacturing, or construction of the Project Infrastructure asset and related
facilities and structures;
b) The costs of environmental assessments, consisting of the engineering costs
directly related to implementing the preferred solution selected under the
environmental assessment process, required to undertake the Project
Infrastructure, and follow-up investigations, as required by the Canadian
Environmental Assessment Act and the Environmental Assessment Act (Ontario);
c) The costs of any public announcement and official ceremony, or of any temporary
or permanent signage, as set out in this Agreement;
d) The costs of bridge inspection reports incurred after November 15, 2004, that are
completed in respect of the Project in accordance with the Ontario Structure
Inspection Manual; and
e) Other costs that are direct and necessary for the successful implementation of
the Project and that have been approved in advance, and in writing, by the
Ministry.
C.1.3 The cost of the Recipient's employees or equipment may be included in its Eligible Costs
if:
a) The Recipient is a rural or isolated Local Government;
25
b) The Recipient satisfies the Ministry that it is not economically feasible to tender a
Contract;
c) Employees or equipment are employed directly in respect of the work that would
have been the subject of the Contract; and
d) Approved in advance and in writing by the Ministry.
C.2 INELIGIBLE COSTS
C.2.1. Notwithstanding any other provision in this Schedule other than C.1.3, costs related to
the following are not eligible:
a) Costs incurred before November 15, 2004 (in respect of a non-OST AR carry-
over Project) OR Costs incurred before May 6, 2004 (in respect of an OST AR
carry-over Project), and costs incurred after March 31, 2009, as the case may be;
b) Services or works that, in the opinion of the Ministry, are normally provided by
the Recipient or a related party;
c) Salaries and other employment benefits of any employees of the Recipient;
d) Overhead costs, direct or indirect operating or administrative costs and, more
specifically costs related to planning, engineering, architecture, supervision,
management and other activities normally carried out by the Recipient's staff;
e) Costs of feasibility and planning studies;
f) Taxes for which the Recipient or a Third Party is eligible for a tax rebate, and all
other costs eligible for rebates;
g) Costs of land or any interest therein, and related costs;
f) Financing charges and interest costs;
g) Cost of leasing of equipment by the Recipient;
h) Costs related to an increase in the need for services attributable to new
residential development;
k) Legal fees; and
I) Routine repair and maintenance costs.
26
SCHEDULE "D" BUDGET
(a) Project initiation date:
(b) Anticipated Project completion date:
(c) Fill in the following table where appropriate:
December 2, 2004
June 30, 2006
Project phase Eligible Costs
1. Construction $1,269,000.00
2. Preliminary engineering (Environmental Assessment, $50,800.00
engineering reports)
3. Engineering (final design/supervision) $137,150.00
4. Project management $64,450.00
5. Surveys $25,400.00
6. Miscellaneous $124,200.00
7. Sum of (1 to 7) $1,671,000.00
8. Grants from other sources (specify) --
9. Total eligible cost (7 minus 8) $1,671,000.00
ESTIMATED COSTS
(d) Complete the following table:
CASH FLOW BASED ON ESTIMATED COSTS
TOTAL IN TABLE (b) MUST BE EQUAL WITH LINE 10 OF ESTIMATED COSTS
Quarter (April - June) (July - Sept.) (Oct. - Dec.) (Jan .- March)
Q1 Q2 Q3 Q4
2004/05 $15,740.00 $2,140.00
2005/06 $4,000.00 $170,000.00 $479,120.00 $50,000.00
2006/07 $300,000.00 $540,000.00 $100,000.00
2007/08 $10,000.00
2008/09
27
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SCHEDULE "F"
FINANCIAL ASSISTANCE
Federal Maximum Financial Assistance:
$1,671,000
$557,000
$557,000
Total Eligible Costs:
Ontario Maximum Financial Assistance:
Maximum Financial Assistance:
$1,114,000
The Ministry will hold back 10% of the Maximum Financial Assistance, the release of which shall
be contingent on submission of the Recipient's Final Report detailing the progress and status of
the Project and substantiating that the Project has been Substantially Performed. Such report
must contain the information required in the Final Report as set out in Section 6.3 of Schedule
"A" of this Agreement. The Ministry is not obligated to pay interest on the holdback or any other
payments under this Agreement.
MINISTRY COLLABORATES WITH CLIENT ON AN APPROPRIATE PROJECT SCHEDULE
29
SCHEDULE"G"
FEDERAL REQUIREMENTS
The Ministry and the Recipient agree to the following Federal Requirements:
1. The Recipient acknowledges and agrees that the amount of Financial Assistance being
provided by the Ministry is dependent on the Ministry receiving funds for the Project from the
Federal Government. Should the Ministry not receive the funds it expects to receive in
relation to the Project from the Federal Government, the Ministry may, in its sole discretion,
Adjust the Financial Assistance being provided to the Recipient pursuant to this Agreement
(including, without limitation, requiring repayment of Financial Assistance already paid to the
Recipient).
2. The Recipient represents and warrants to the Federal Government that other than the
Financial Assistance being provided pursuant to this Agreement, the Recipient has not and
will not use any other funding received from the Federal Government towards any aspect of
the Project.
3. The Recipient agrees to indemnify and hold harmless the Federal Government, its directors,
officers, servants, employees and agents from and against all suits, judgments, claims,
demands, expenses, actions, causes of action and losses (including, without limitation,
reasonable legal expenses and any claim for lien made pursuant to the Construction Lien
Act (Ontario)) and for any and all liability for damages to property and injury to persons
(including death) which the Federal Government, its directors, officers, servants, employees
and agents may incur, otherwise than by reason of their own negligence or wilful
misconduct, as a result of or arising out of or in relation to: (a) the performance of this
Agreement or any breach of the terms of this Agreement by the Recipient, its officers,
servants, employees and agents, or by a third party, and any of its officers, employees,
servants or agents; (b) the ongoing operation, maintenance and repair of the infrastructure
resulting from the Project; or (c) any omission or other wilful or negligent act of the
Recipient, a third party, their respective employees, officers, servants or agents.
4. The Recipient further agrees to indemnify and hold the Federal Government, its directors,
officers, employees and agents, for any incidental, indirect, special or consequential
damages, or any loss of use, revenue or profit, which the Federal Government, its directors,
officers, employees and agents may incur, otherwise than by reason of their own negligence
or wilful misconduct, as a result of or arising out of or in relation to any breach by the
Recipient of the terms of this Agreement, or the Recipient's own negligence or wilful
misconduct.
5. The Recipient acknowledges that the provisions of the Access to Information Act (Canada)
and the Privacy Act (Canada) and regulations thereunder bind Her Majesty the Queen in
right of Canada.
6. The Recipient acknowledges that the Federal Government is or will be the owner of certain
distinguishing marks comprised of designs, trademarks and official marks in relation to
COMRIF (the "Federal Licensed Marks") and the Recipient is subject to the requirements of
30
Section 13 (Communication and Recognition) of Schedule "A" of this Agreement, with
appropriate changes, in relation to the Federal Licensed Marks.
7. No member of the House of Commons or of the Senate of Canada shall be admitted to any
share or part of any contract, agreement or commission made pursuant to this Agreement or
to any benefit arising therefrom.
8. Notwithstanding any provisions of this Agreement, all obligations of Canada incurred by
virtue of this Agreement shall be subject to the Financial Administration Act (Canada).
9. All of the provisions of this Schedule "G" shall survive the expiration or early termination of
this Agreement.
1 O. Pursuant to the requirements of the Canadian Environmental Assessment Act, the Recipient
will follow the general environmental mitigation measures outlined in the document entitled
"Screening under the Canadian Environmental Assessment Act" and any Project-specific
environmental mitigation measures as communicated to the Recipient by the Federal
Government.
11. The Recipient acknowledges and agrees that the Federal Government may, in its sole
discretion, exercise the Ministry's right to monitor the Project, perform audits and/or gather
data pursuant to the terms and conditions of this Agreement.
31
SCHEDULE "H"
ADDITIONAL PROVISIONS
The Ministry and the Recipient agree to the following additional provisions:
1. Further to Section 16 of Schedule "A" hereto, notice can be given at the following
addresses:
(a) If to the Ministry:
Ministry of Municipal Affairs and Housing
1 Stone Road West, 4th Floor
Guelph, ON
N1G 4Y2
Phone: 1-866-306-7827
Fax: (519) 826-4336
E-Mail: brian.cardy@mah.gov.on.ca
Attention: Brian Cardy, Manager
(b) If to the Recipient:
MUNICIPALITY OF CLARINGTON
40 Temperance St.,
Bowmanville, ON
L 1 C 3A6
Phone: (905) 623-3379
Fax: (905) 629-9282
E-Mail: cao@municipality.clarington.on.ca
Attention: Frank Wu, Chief Administrative Officer
2. Other provisions:
3. Other Reporting Requirements: [e.g. bridge requirements]
4. Useful Life of Project Infrastructure: [Le. no. of years]
32
SCHEDULE "I"
COMMUNICATIONS REQUIREMENTS
Unless specified otherwise in Schedule "G", for the purposes of this Schedule "I" the Recipient
shall follow these communications requirements.
Purpose of Schedule
This Schedule describes the Recipient's responsibilities and financial obligations involved in the
joint communications activities and products for the Project to recognize the contributions of the
Senior Government and the Recipient.
General Principles
The Recipient will work with COMRIF officials and other partners to undertake communication
activities ensuring equal recognition of all parties making a significant financial contribution to
the Project.
All ceremonies, events, signs and plaques will follow these Communications Requirements and
any other requirements that may be specified by COMRIF Joint Secretariat from time to time.
All parties making a significant financial contribution to the Project will receive equal recognition
and prominence when logos, symbols, flags and other types of identification are incorporated
into announcements, ceremonies, signs and plaques unless the COMRIF Joint Secretariat
provides otherwise.
All announcements and ceremonies will be organized jointly with equal participation from all
parties making a significant financial contribution to the Project.
Both official languages will be used for public information, signs and plaques in accordance with
Canada's language standards for Projects.
SiQns and Plaques
The Recipient must comply with the COMRIF style guide when designing all signs and plaques
as set out below:
. COMRIF style guide and digital templates are available from the COMRIF website at
www.comrif.ca. For more information, please contact the COMRIF Joint Secretariat
at 1-866-306-7827.
The Recipient will ensure that proofs of all Project signs and plaques are reviewed by the
COMRIF Joint Secretariat before installation.
33
Responsibilities
The Recipient is responsible for producing and erecting Project signs to communicate the
nature of the Project and the involvement of the Senior Government and the Recipient. Project
signage will be erected at all sites, facilities, etc. where the Financial Assistance is being used,
as negotiated with the COMRIF Joint Secretariat.
The Recipient shall erect signs and install plaques as directed by this Schedule. The relevant
standards and procedures are outlined in the following paragraphs.
External Project Signs (Temporary)
. External Project Signs (at least 120cm high x 240cm wide / four feet high by eight feet wide)
are required where the Maximum Financial Assistance exceeds $100,000, the Project is
underway and where the duration of the Project is longer than three months. Larger signs
(240cm high by 480cm wide / eight feet high or sixteen feet wide) are required where the
Maximum Financial Assistance exceeds $1,000,000, where the Project is under way and
where the duration of the Project is longer than six months.
. External Project signs will follow the approved design and guidelines outlined in the
COMRIF style guide. These guidelines provide specifications such as the required
positioning of government logos and those of its public and/or private sector partners, as
appropriate.
. Both official languages will be used for public information, signs and plaques when required
by Canada's language standards for Projects.
. The Recipient will submit proofs via e-mail or fax of the external Project signs to the
COMRIF Joint Secretariat for approval.
. The Recipient will oversee the manufacture of the sign and ensure that the selected location
of the sign does not restrict access, pose any hazard or interfere with facilities and services
(e.g. electrical systems, drainage, etc.).
. The Recipient will ensure that the Project signs are erected in prominent locations at the
Project site as soon as possible after the execution of this Agreement and no later than 10
days after the start of construction. Erected signs should be maintained for up to 30 days
following Project completion. The Recipient will arrange for sign removal and re-cycling
following the 30-day period.
. Signs should be freestanding, securely assembled and erected, away from other distracting
signs. No other sign, including those of design and/or engineering firms and/or contractors
involved with the Project, should be attached to the Project sign.
· The Recipient is responsible for sending to the COMRIF Joint Secretariat, within 30 days of
receipt of the COMRIF approval of design proofs, a photograph (digital or otherwise) that
portrays the erected sign in relation to the Project.
· Where the Maximum Financial Assistance does not exceed $100,000, the Recipient may, at
its option, install a sign (following the requirements of this Schedule) and the costs
associated with so doing will be an Eligible Cost in accordance with this Schedule.
34
Plaques (Permanent)
· Upon completion of a Project where the Maximum Financial Assistance exceeds $500,000,
the Recipient will install a permanent plaque using acrylic, photo sublimination, cast
aluminium or cast bronze. If the Maximum Financial Assistance exceeds $1,000,000, the
Recipient will install a permanent plaque using cast aluminium or cast bronze.
· Permanent plaques may follow the design outlined in the COMRIF style guide or use a style
suited to the building, provided all governments and partner logos are included.
· Costs for plaques will be part of the Project's Eligible Costs in accordance with this
Schedule.
. The Recipient will submit proofs of the plaques to the COMRIF Joint Secretariat for
approval.
. Both official languages will be used for public information, signs and plaques when required
by Canada's language standards for Projects.
. Upon completion of a Project where the Maximum Financial Assistance does not exceed
$500,000, the Recipient may, at its option, install a permanent plaque (following the
requirements of this Schedule) and the costs associated with so doing will be an Eligible
Cost in accordance with this Schedule.
Eligible Costs
External Project Signs (Temporary)
Small sign: 120 em high by 240 em wide/4 feet by 8 feet
Production - $1,250
Installation - 1,000
TOTAL $2,250
Large sign: 240 em high x 480 em wide/8 feet by 16 feet
Production - $2,250
Installation - 2,000
TOTAL $4,250
Plaques (Permanent)
Plaque: 71 em high x 45.7 em wide/28 inches high by 18 inches wide
Cast Bronze $2,500 for one colour
Cast Aluminum $2,000 for up to three colours
Engraved Acrylic $1,500 for up to three colours
Embedded Acrylic $400 for up to three colours
Photo Sublimation $100 for up to three colours
35
Announcements and Ceremonies
Senior Government, in cooperation with the Recipient, is responsible for organizing the Project
approval announcement. Milestone events, such as ground-breakings and ribbon-cuttings, will
be organized by the Recipient, in cooperation with the Senior Government. All governments
must be equally represented at all events.
When asked by elected representatives or designated officials from the Senior Government, the
Recipient will coordinate a mutually agreeable venue, date and time for the event in light of the
availability of participants from all levels of government. The Senior Government will consider
announcing Projects by news release only when scheduling conflicts prevent announcing
Project approval through a local event within 45 days of final approval by the Senior
Government.
The Recipient may invite other elected officials and members of council. The Recipient should
also invite local interested parties, such as contractors, architects, labour groups, and
community leaders as early as possible, and in consultation with the Senior Government, prior
to the event.
After the participants, date and location have been determined, the Recipient should send out
invitations to all guests.
Where appropriate, the Recipient should invite the general public by posting notices in public
areas, such as post office and libraries or by placing public service announcements in the local
media.
All written communications (invitations, public service announcements, posters, etc.) must
indicate that the Project received Financial Assistance from the Governments of Canada and
Ontario under COMRIF.
The Recipient could arrange for light refreshments to be served after the event, for example
coffee, tea, juice, donuts and muffins.
The Recipient will have an opportunity to provide input into the agenda, news release, etc. and
will receive final copies.
To ensure the COMRIF visual identity is visible at all events, a COMRIF backdrop and/or lectern
sign will be provided to the Recipient for the event. Federal, provincial and municipal flags
should also be on display at all COMRIF events.
Responsibilities
The Recipient will:
. make all local arrangements (e.g., podium, flags as appropriate, seating for speakers,
shovels for ground-breaking ceremonies or ribbon for opening ceremonies, etc.) if required;
· produce invitation and guest list and distribute invitations;
· display Project material;
· choose a Master of Ceremonies, if required;
36
. arrange for refreshments if desired; and,
· arrange for a public address system if appropriate.
Eligible Costs
A portion of a recommended event (sod turning, plaque unveiling, ribbon-cutting, official
opening) will be funded in accordance with this Agreement. In order for a cost to be considered
an Eligible Cost for the purposes of this Schedule, COMRIF Joint Secretariat must pre-approve
the budget related to the event. No more than $750 of Eligible Costs will be considered.
Only costs associated with events recommended by the Senior Government will be considered
Eligible Costs.
The Project may be of such regional or provincial significance that it warrants a major event
(such determination to be made by the COMRIF Joint Secretariat, in its sole discretion). If this
is the case, specific Project budgets above $750 in Eligible Costs may be permitted with the
prior approval of the COMRIF Management Committee.
For the purposes of announcements and ceremonies, Eligible Costs include the following:
. Printing and mailing invitations
. Refreshments*
. Draping for plaque unveiling
. Project material for display and/or media kit
. Temporary signage
. Rentals such as:
. flagpoles
. stage
. chairs
. podium
. P A system
*Only light refreshments such as coffee, tea, juice, donuts, muffins will be considered Eligible
Costs.
The cost of certain items such as alcoholic beverages, china, tents, waiters, guest mileage or
transportation, wine glasses, lamps, tea wagons, plants, photographers and gifts are not Eligible
Costs.
37
SCHEDULE "J"
CASH FLOW REPORT
Canada
@ Ontario
Canada - Ontario Municipal Rural Infrastructure Fund (COMRIF)
Fonds sur I'infrastructure municipale rurale Canada-Ontario
MUNICIPAL CASH FLOW REPORT
Municipality Name:
File Number:
Contract Status:
Quarter (April - June) (July - Sept.) (Oct. - Dec.) (Jan .- March)
Q1 02 Q3 04
2004/05
2005/06
2006/07
2007/08
2008/09
Prepared By:
Phone Number:
Report Date:
NOTES:
1) Please only include Net Eligible Expenditures n total eligible costs net GST
2) If the project could not be completed within the timeframes of the program, please enter
cost forecasts in the last quarter of the program
3) Previously reported information is provided for you. Should the information have
changed, please provide the revised cash flow along with an explanation of the change
38
SCHEDULE" K"
PROGRESS REPORT
Canada
@ Ontario
Canada - Ontario Municipal Rural Infrastructure Fund (COMRIF)
Fonds sur I'infrastructure municipale rurale Canada-Ontario
Progress Report
Rapport sur I'etat d'avancement des travaux
Report # I Rapport nO _ of I de _
File # I Dossier nO
Project Start Date / de debut du projet :
Project End Date / Date de fin du projet :
Local Government Name / Nom de la municipalite :
Estimated % of Project Completion / Estimation du pourcentage des travaux realises: _ %
Detailed Description I Description detaillE!e :
Communications Reauirements I Besoins en matiere de communication:
Issues I Points a souligner :
Signature / Signature:
Date / Date:
39
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THIS AMENDING AGREEMENT made in duplicate this 1st day of March , 2010.
BETWEEN:
THE ASSOCIATION OF MUNICIPALITIES OF ONTARIO
(referred to herein as "AMO")
-and-
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
(referred to herein as the "Recipient")
WHEREAS Canada, Ontario and Ontario municipalities, as represented by AMO and
Toronto entered into an Agreement for the Transfer of Federal Gas Tax Revenues Under the
New Deal for Cities and Communities on June 17, 2005 (amended on June 20, 2007) (the
"Canada-Ontario-AMO-Toronto Agreement"), whereby AMO agreed to administer funds on
behalf of Ontario municipalities made available pursuant to the Canada-Ontario-AMO-
Toronto Agreement on behalf of Canada;
WHEREAS the Canada-Ontario-AMO-Toronto Agreement outlines a framework for the
transfer of funds to Ontario municipalities, represented by AMO and Toronto with stable,
reliable and predictable funding for environmentally sustainable infrastructure purposes;
WHEREAS Canada, Ontario and Ontario municipalities, represented by AMO and
Toronto have amended the Canada-Ontario-AMO-Toronto Agreement on September 3,
2008, in order to confirm municipalities' Gas Tax Fund allocations to 2014;
AND WHEREAS AMO and the Recipient have previously entered into a Municipal
Funding Agreement for the Transfer of Federal Gas Tax Revenues Under the New Deal for
Cities and Communities;
NOW THEREFORE this Amending Agreement witnesseth that:
The preamble forms an integral part of this Amending Agreement.
2. Terms not defined in this Amending Agreement have the meanings assigned in the
Municipal Funding Agreement For the Transfer of Federal Gas Tax Revenues
Under The New Deal for Cities and Communities.
a. Audit Statement definition is deleted and replaced as follows:
"Audit Statement" means a written audit statement to be prepared and
delivered to AMO as set out in section 7.1 h hereto.
b. End of Funds definition is deleted and replaced as follows:
"End of Funds" means March 31, 2014.
c. Infrastructure Program definition is deleted and replaced as follows:
"Infrastructure Program" means Canada's infrastructure programs in
existence at the time of the execution of this Agreement.
d. Large Municipalities definition is deleted and replaced as follows:
"Large Municipalities" means those Municipalities with a 2006 National
Census data population of 500,000 or more including the Regional
Municipalities of Durham, Peel and York and the Cities of Hamilton,
Mississauga and Ottawa.
e. Treasurer definition is added:
"Treasurer" means a municipal treasurer as defined in subsection 286(1) of the
Municipal Act, 2001 (Ontario).
f. Treasurer's Certificate definition is added:
"Treasurer's Certificate" means a written statement by the Treasurer to be
prepared and delivered to AMO as set out in section 7.1 i hereto and in the form
identified in Schedule H attached.
3. Section 2.1 is deleted and replaced as follows:
2.1. Term. 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, 2015.
4. Section 3.1 c is deleted and replaced as follows:
c. ensure that there is no reduction in capital funding provided by Municipalities for
Municipal Infrastructure.
5. Section 3.1 d is deleted and replaced as follows:
d. In the case of Recipients that are Municipalities in excess of 100,000 in
population, ensure that over the period of January 1, 2010 to March 31, 2014 the
Recipient's capital spending on Municipa! Infrastructure shall not fall below its Base
Amount; and,
6. Section 3.1 a is added:
e. ensure any of its contracts for the supply of services or materials to implement
its responsibilities under this Agreement shall be awarded in a way that is
transparent, competitive, consistent with value for money principles and pursuant
to its adopted procurement policy.
7. Section 4.2 is deleted and replaced as follows:
4.2. Exception. For Large Municipalities, the list of eligible categories shall
consist of no more than two (2) of the categories in Section 4.1 a. to f.
8. Section 5.4 is deleted and replaced as follows:
5.4. Retention of Receipts. The Recipient shall retain all evidence (such as
invoices, receipts, etc.) of payments related to Eligible Costs and such supporting
documentation must be available to Canada when requested and maintained by
the Recipient for audit purposes in accordance with the municipal records retention
by-law.
9. Section 6.7 is deleted and replaced as follows:
6.7. Expenditure of Funds. The Recipient shall expend all Funds by
December 31, 2016.
10. Section 6.8 is deleted and replaced as follows:
6.8. GST and 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 pursuant to
the Excise Tax Act (Canada) net of any applicable rebates.
11. Section 7.1 h is deleted and replaced as follows:
h. an annual Audit Statement, if Funds were applied to Eligible Costs incurred for
Eligible Projects in respect of the previous Municipal Fiscal Year. An annual Audit
Statement is to be prepared by the Recipient's auditor in accordance with section
5815 of the Canadian Institute of Chartered Accountants Handbook -Special
Reports - Audit Reports on Compliance With Agreements, Statutes and
Regulations, providing assurance that the terms of the Agreement have been
adhered to and Funds received by the Recipient have been spent in accordance
with the Agreement;
12. Section 7.1 i is added:
i. a Treasurer's Certificate, if Funds were not applied to Eligible Costs incurred for
Eligible Projects in respect of the previous Municipal Fiscal Year. A Treasurer's
Certificate is to be prepared by the Recipient's Treasurer, providing assurance that
activity related to sections 6.4, 6.5, and 11 has been conducted within the terms
and conditions of the Agreement.
13. Section 7.2 is deleted and replaced as follows:
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 upon completion of an Eligible Project and to be made available publicly in
manner consistent with financial reporting under the Municipal Act, 2001 S.O. 2001
c.25 by March 31S` of the following Municipal Fiscal Year.
a. The Recipient's Outcomes Report shall report in writing on the cumulative
investments made, in a manner to be provided by AMO, including information
on the degree to which these investments have actually contributed to the
objectives of cleaner air, cleaner water and reduced greenhouse gas emissions.
14. Section 9.2 is deleted and replaced as follows:
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 Eligible Projects that Funds are paid in respect
of in accordance with the municipal records retention by-law. Upon reasonable
notice, the Recipient shall submit all records and documentation relating to the
Funds to Canada for inspection or audit.
15. Notwithstanding the date of execution of this Amendment Agreement, the
provisions of this Amending Agreement are in effect as of January 1, 2010 and
continue in effect far the duration of the term of the Municipal Funding Agreement
For the Transfer of Federal Gas Tax Revenues Under The New Deal for Cities and
Communities.
16. Section 14.3 is deleted and replaced as follows:
14.3. Addresses for Notice. Further to Section 14.1 of this Agreement,
notice can be given at the following addresses:
a. If to AMO:
Executive Director
Federal Gas Tax 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:
Frank Wu
CAO
Municipality of Clarington
40 Temperance Street
Bowmanville, ON L1 C 3A6
Telephone: (905) 623-3379 x252
Facsimile: (905) 623-5717
Email: cao@clarington.net
17. Section 15.4 is deleted and replaced with the following:
15.4 Survival. The following schedules, sections and provisions of his
agreement shall survive the expiration or early termination hereof: SECtiohs 5, 8.7,
7, 9.3, 10.4, 10.5, 11, 12.3, 15.7, and Schedule G. -=_
18. Section 16.1, Schedule A is amended as attached.
19. Section 16.1, Schedule H is added as attached.
20. Except as amended herein, the provisions of the Municipal Funding Agreement For
the Transfer of Federal Gas Tax Revenues Under The New Deal for Cities and
Communities remain in full force and effect.
IN WITNESS WHEREOF this Agreement has been executed by the duly authorized officers
of the parties hereto as of the date first above written.
REC1PlENT'S NAME: THE CORPORATION OF THE MUNICIPALITY OF
CLARINGTON
By:
ffix - March 1 , 2020
orporate Nam Date
eal T• ~ A6E1'118thy, Mayor
,.=-"
i
jI'/ _ i(,~, ) March 1, 2010
Date
Itt~L~garrie~ Clerk
THE ASSOCIATION OF MUNICIPALITIES OF ONTARIO
By:
_.~
i
~ ~l~
j,%
~` / !~ --//
(Title: Executive Director ate
frix
orporate -
eal
In the presence of:
,~ ~
fitness ~ Date
T le: Director of Ad ini tration
and Business a elooment
SCHEDULE A
SCHEDULE OF FUND PAYMENTS
RECIPIENT'S NAME: The Corporation of the Municipality of Clarington
The following represents the minimum Funds and schedule of payments over the life of this
Amending Agreement.
Year Schedule of Fund Payments
Jul 15th November 15th
2010 $1,193,564.25 $1,193,564.25
2011 $1,193,564.25 $1,193,564.25
2012 $1,193,564.25 $1,193,564.25
2013 $1,193,564.25 $1,193,564.25
SCHEDULE H
TREASURER'S CERTIFICATE
To the Association of Municipalities of Ontario
As the Treasurer of the Corporation of <INSERT MUNICIPAL NAME>, I acknowledge that for
the 20_ Municipal Fisca! Year, there were no Eligible Costs incurred for Eligible Projects
under the Agreement.
I confirm that the Corporation of <INSERT MUNICIPAL NAME> received its Federal Gas Tax
allocation for the 20 Municipal Fiscal Year within the terms and conditions specified in
section 6.4 of the Agreement.
I also confirm that the carry-over of unexpended Funds followed the terms and conditions of
section 6.5 of the Agreement. Specifically, the interest earned on unspent funds has been
calculated on a reasonable basis, the interest was calculated on a similar basis as other
reserve and reserve funds, and that the interest rate used is comparable to the one used for
other reserve funds which are required to earn interest.
I also confirm that the title to Municipal Infrastructure resulting from Eligible Projects is
retained by the Corporation of <INSERT MUNICIPAL NAME> as specified under section 11.1
of the Agreement.
As the duly appointed Treasurer of the Corporation of <INSERT MUNICIPAL NAME> I
hereby certify that, as at December 31, 20 ,activity related to the Municipal Funding
Agreement for the Transfer of Federal Gas Tax Revenues Under the New Deal for Cities and
Communities dated <INSERT DATE ON MFA> between the Association of Municipalities of
Ontario and the <INSERT MUNICIPAL NAME>, has been conducted within the terms and
conditions set out in the Agreement.
Name:
Title:
<INSERT MUNICIPAL NAME>
Date