3378 To authorize the execution of a contribution agreement betweenher majesty the queen in right of Ontario (as represented by the deputy premier and minister of energy and infrastructure, and the minister of agricultureTHE CORPOR.A,TION OF THE TOWN OF TILLSONBURG
BY-LAW NO. 3378
BEING A BY-LAW TO AUTHORIZE THE EXECUTION OF A CONTRIBUTION
AGREEMENT BETWEEN HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (AS
REPRESENTED BY THE DEPUTY PREMIER AND MINISTER OF ENERGY AND
INFRASTRUCTURE,
AND THE MINISTER OF AGRICULTURE, FOOD AND RURAL AFFAIRS) AND
THE TOWN OF TILLSONBURG FOR INFRASTRUCTURE PROJECTS UNDER THE
BUILDING CANADA FUND — COMMUNITIES COMPONENT (BCF -CC) PROGRAM.
WHEREAS under Section 8 of the Municipal Act, 2001, S .O. 2001, c.25, as amended, the
powers of a municipality shall be interpreted broadly to enable it to govern its affairs as it
considers appropriate and to enhance the municipality's ability to respond to municipal issues;
AND WHEREAS under Section 9 of the Municipal Act, 2001, S .O. 2001, c.25, as amended, a
municipality has the capacity, rights, powers and privileges of a natural person for the purpose of
exercising its authority under this or any other Act;
AND WHEREAS the Council of The Corporation of the Town of Tillsonburg deems it
necessary to enter into a contribution agreement with the Deputy Premier and Minister of Energy
and Infrastructure, and the Minister of Agriculture, Food and Rural Affairs under the Rural
Economic Development :Program for funding under the Building Canada Fund — Communities
Component (BCF -CC) program.
NOW THEREFORE the Council of The Corporation of the Town of Tillsonburg enacts the
following as a by -lave m
1. That the Council of The Corporation of the Town of Tillsonburg hereby agrees to enter into a
contribution agreement with Her Majesty the Queen in right of Ontario, as represented by the
Deputy Minister and Minister of Energy and Infrastructure and the Minister of Agriculture,
Food and Rural Affairs under the Building Canada Fund — Communities Component (BCF -
CC) for infrastructure projects.
2. That the said contribution agreement is attached hereto as Schedule "A" and forming part of
this By-law; and
3. That the Mayor and Clerk are hereby authorized to sign and seal said agreement on behalf of
the Corporation.
READ A FIRST AND SECOND TIME THIS 10th DAY OF August, 2009.
READ A THIRP'AND FINAL TIME AND PASSED THIS 10`h DAY OF August, 2009.
/MAYOR -Stephen Molnar
CLERK -Michael Graver
THIS AGREEMENT made in quadruplicate as of the day of , 2009.
B E T W E E N: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
as represented by the Deputy Premier and Minister of Energy and
Infrastructure,
and the
Minister of Agriculture, Food and Rural Affairs (referred to herein as
"OMAFRA" in the latter case)
AN D: THE CORPORATION OF THE TOWN OF TILLSONBURG
(referred to herein as the "Recipient")
WHEREAS the Parties recognize that investments in public infrastructure are fundamental to
the quality of life of Ontarians and necessary to ensure continued economic growth;
AND WHEREAS the purpose of the Building Canada Fund — Communities Component (BCF -
CC) is to improve and renew public infrastructure in Ontario's communities with populations of
less than 100,000 people;
AND WHEREAS investments under the BCF -CC focus on projects in smaller communities to
advance federal and provincial objectives of economic growth, cleaner environment, and strong
and prosperous communities;
AND WHEREAS the BCF -CC supports projects that address local needs;
AND WHEREAS Recipients under the BCF -CC may choose to apply for funding for Projects in
the categories of drinking water, wastewater, public transit, Core National Highway System,
green energy, disaster mitigation, solid waste management, brownfield remediation and
redevelopment, culture, sport, connectivity and broadband, local roads, shortline railways, short -
sea shipping, regional and local airports, tourism as well as collaborative projects;
AND WHEREAS this Agreement defines the terms and conditions of a financial contribution
from Canada and Ontario to assist with the Project under BCF -CC which is being administered
by the Government of Ontario;
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:
Affix
Corporat
Seal
BCF -CC Contribution Agreement for Infrastructure Projects
1 -his Agreement, including:
Schedule "A"
- General Terms and Conditions
Schedule "B"
- Description of the Project
Schedule "C"
- Eligible and Ineligible Costs
Schedule "D"
- Financial Assistance
Schedule "E"
- Federal Requirements
Schedule "F"
- Additional Provisions
Schedule "G"
- Communications Requirements
Schedule "H"
- Expenditure Report
Schedule "I"
- Progress Report
Schedule "J"
- Claim Report
Schedule "K"
- Final Report
File# 23151
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 Government of Ontario 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 Deputy Premier and Minister of Energy and Infrastructure
by:
Name: The Honourable George Smitherman Date
Title: Deputy Premier and Minister of Energy and Infrastructure
and by the Minister of Agriculture, Food and Rural Affairs
by:
Name: The Honourable Leona Dombrowsky Date
'Title: Minister of Agriculture, Food and Rural Affairs
RECIPIENT'S NAME: THE CORPORATION OF THE TOWN OF TILLSONBURG
by:
Name: Stephen Molnar Date
'Title: Mayor
e
Name: David C. Morris Date
Title: Chief Administrative Officer
I/we have authority to bind the Recipient
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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 or terminate the Financial Assistance on the
Project or the amount of financial assistance for any other of the Recipient's project(s) under the
BCF -CC, 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 for the Project in an amount to be
determined by OMAFRA and within the period specified by OMAFRA.
"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.
"Business Day" means any day on which Government of Ontario offices generally are open for
business in the Province of Ontario.
"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
"G" hereto, or as directed by OMAFRA from time to time.
"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.
"Crown Agency" means a crown agency as defined in the Crown Agency Act (Ontario).
"Eligible Costs" means the costs so described in Schedule "C".
"End of Financial Assistance Date" means March 31, 2017.
"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
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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.
"Expenditure Report" has the meaning given to it in Section 6.1 of this Agreement.
"'Expiration Date" means March 31, 2017.
"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 "E" to this
Agreement.
"Federal Maximum Financial Assistance" has the meaning set out in Schedule "D" hereto.
"Final Report" has the meaning given to it in Section 6.3 of this Agreement.
"Final Report Date" means May 31, 2016.
"Financial Assistance" means the funds contributed by the Senior Government to be advanced
by OMAFRA 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 the 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 under the
Agreement in accordance with Generally Accepted Accounting Principles.
"Government of Ontario" means Her Majesty the Queen in right of Ontario, as represented by
the Deputy Premier and the Minister of Energy and Infrastructure and by the Minister of
p Y
Agriculture, Food and Rural Affairs.
"Infrastructure" means publicly or privately owned capital assets in Ontario for public use or
benefit.
"Indemnified Parties" means Her Majesty the Queen in right of Ontario, Her Ministers,
directors, officers, agents, appointees and employees and Her Majesty the Queen in right of
Canada, Her Ministers, directors, officers, agents, appointees and employees.
"Ineligible Costs" means the costs so described in Schedule "C"
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"Joint Secretariat" means the Joint Secretariat referred to in Section 4.5 of the Canada —
Ontario Building Canada Fund Communities Component Agreement 2007 — 2017 made as of
August 26, 2008, between Her Majesty in Right of Canada, as represented by the Minister of
Transport, Infrastructure and Communities, and Her Majesty in Right of the Province of Ontario,
as represented by the Minister of Energy and Infrastructure (the "Canada — Ontario BCFCC
Agreement");
"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 100,000 people.
"Maximum Financial Assistance" has the meaning set out in Section 4.5 and Schedule "D"
hereto.
"Ontario Maximum Financial Assistance" has the meaning set out in Schedule "D" hereto.
"Oversight Committee" means the committee established pursuant to Subsection 4.1 of the
Canada — Ontario BCF -CC Agreement, responsible for administering and managing the Canada
— Ontario BCF -CC Agreement, established pursuant to Subsection 4.1 of the same;
"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 Completion Date" means March 31, 2016.
"Recipient" has the meaning given to it on the first page of this Agreement.
"Senior Government" means the Government of Ontario 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).
"Third Party" means any person other than the Senior Government or a Recipient that
participates in the implementation of a Project.
"Total Eligible Costs" has the meaning set out in Schedule "D" 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.
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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
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 OMAFRA Approvals. Any reference to, or requirement for, the approval of OMAFRA in
this Agreement or in any schedule hereto shall be deemed to require the prior and
express written approval of OMAFRA.
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 (the "Term").
2.2 End of Financial Assistance Date. Notwithstanding anything in this Agreement and
regardless of the Project's state of completion, OMAFRA 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 included in Schedule "C", Part C.1,
except where otherwise expressly approved in writing by OMAFRA. For greater
certainty, where Schedule "B" 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 OMAFRA. Subject to Section 3.1, the eligibility of any items not listed in
Schedule "C" to this Agreement will be determined in accordance with OMAFRA's
policies and guidelines. The final determination of the eligibility of any items claimed is at
the sole discretion of OMAFRA.
3.3 Retention of Receipts. The Recipient shall retain all records of payments related to
Eligible Costs including, without limitation, invoices and receipts, for audit purposes and
such supporting documentation must be available to OMAFRA when requested.
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 Part C.2 of
Schedule "C" ("Ineligible Costs").
3.5 Deemed ineligible. The Recipient acknowledges that OMAFRA's Fiscal Year ends on
March 31 in each year, and that should a 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 cost shall be deemed ineligible for Financial Assistance.
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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 OMAFRA to the Recipient on the basis set out in Schedule "D".
4.3 Semi -Annual Reporting. The Recipient is required to submit semi-annual Expenditure
Reports to OMAFRA pursuant to Section 6.1 prior to OMAFRA releasing any Financial
Assistance.
4.4 Funds advanced. If Financial Assistance is provided to the Recipient by OMAFRA prior
to OMAFRA 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 OMAFRA and must be held by the
Recipient in trust for OMAFRA 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 OMAFRA 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
figure set out in Schedule "F" hereto.
4.6 Excess funds. Where actual costs are lower or appear likely to be lower than the total
eligible expenditures, 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 OMAFRA. OMAFRA 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, OMAFRA may, in its sole discretion, adjust the Financial
Assistance for the Project.
4.8 Recipient not carrying out Project. The Recipient shall immediately notify OMAFRA if
it does not intend to carry out the Project in whole or in part as specified in Schedule "B"
in which case OMAFRA 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, OMAFRA 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 OMAFRA, in which case OMAFRA may, in its sole
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discretion, adjust the Financial Assistance. Likewise, if OMAFRA becomes aware of any
alternatives to the Project that are more cost effective, the Recipient will be notified and
OMAFRA 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. OMAFRA 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 Government of
Ontario, 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 Government of Ontario may terminate this Agreement in accordance with the
terms specified in Section 15.5 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 Government of Ontario not responsible for implementation. The Government of
Ontario 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 Government of Ontario not responsible for costs, etc. The Government of Ontario
shall not be responsible for any costs associated with the operation, maintenance and
repair of the Project nor for any claims, proceedings or judgments arising from the tender
and bidding process.
5.4 Behaviour of Recipient. The Recipient shall at all times carry out the Project in an
economical and businesslike manner, in accordance with this Agreement subject to any
reasonable changes that OMAFRA 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. Municipalities must follow their established
procurement protocol as directed by the Municipal Act. All other Recipients must ensure
that for equipment, services and supplies, the estimated cost of which exceeds
$25,000.00, the Recipient shall obtain at least three written quotes unless OMAFRA
gives prior written approval. The requirement for a competitive process may be waived
with prior written approval by OMAFRA if:
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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 OMAFRA, all portions
of the construction component of the Project (including materials and equipment) shall
be competitively and openly tendered, in the opinion of OMAFRA, 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 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
OMAFRA 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 OMAFRA. Upon completion of the cost reviews, audits and
settlement, OMAFRA shall not be obligated to consider any further claims in relation to
the Project. The Recipient shall also submit, upon request by OMAFRA, 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
of the date of this Agreement, failing which this Agreement may be terminated pursuant
to Section 15 unless otherwise approved by the Oversight Committee.
5.11 Contracts. The Recipient shall ensure that all Contracts:
a) are consistent with this Agreement;
b) do not conflict with this Agreement;
C) incorporate the relevant provisions of this Agreement to the fullest extent
possible;
d) conform to all policies and procedures issued by the Senior Government for the
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BCF -CC;
e} 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;
f) require that the parties thereto comply with all applicable legislation; and
g) authorize the Government of Ontario and the Federal Government to collect, use
and distribute information and data gathered by parties, perform audits and
monitor the Project as they see fit.
SECTION 6
REPORTING REQUIREMENTS
6.1 Expenditure Report. The Recipient shall submit semi-annual reports for the Project to
OMAFRA on or before February 15th and August 15th of each Fiscal Year outlining the
current expenditures and projections and the Recipient shall follow such administrative
procedures as are specified from time to time by OMAFRA.
6.2 Claims Submission. All Claim Submissions shall include the following reports:
1. Progress Report. The Recipient shall provide OMAFRA with a report in the form set
out in Schedule "I" ("Progress Report") that shall contain sufficient information to allow
OMAFRA 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;
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; and
e) any other information respecting the Project that may be requested by OMAFRA.
2. Claim Report. The Recipient shall provide OMAFRA with a report in the form set out
in Schedule "J" ("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
OMAFRA 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 OMAFRA;
b) a list of the vendors from which the invoices were received;
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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
OMAFRA, the Recipient shall submit a final report (the "Final Report") for the Project to
OMAFRA in a form satisfactory to OMAFRA and the Recipient shall follow such
administrative procedures as are specified from time to time by OMAFRA. 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 OMAFRA;
f) a final cost summary in the form appended as Schedule K hereto;
g) when requested, all original invoices and receipts for the Project;
h) details of any variance from the Project;
i) details of the benefits and outcomes of the Project; and
j) any other information respecting the Project that may be requested by OMFRA,
including, but not limited to, audited financial statements.
Upon receipt of the Final Report, OMAFRA 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 this Agreement. Upon request, the
Recipient shall submit to OMAFRA and any member of the Oversight Committee 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.
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7.2 Provide records to OMAFRA. The Recipient shall provide to OMAFRA and any
member of the Oversight Committee, 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 BCF -CC, or any other
provincial program(s), for the purposes of cost reviews, audits and settlement, as may
be required by OMAFRA, of the Project or any other project(s) of the Recipient under the
BCF -CC, or any other provincial program(s). Such material shall be provided in a form
and manner satisfactory to OMAFRA and the Oversight Committee, as applicable.
7.3 External auditor. OMAFRA 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 this Agreement. If so,
the Recipient shall, upon request, retain an external auditor acceptable to OMAFRA 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 OMAFRA for its consideration at the same time that the audit report is
given to the Recipient.
7.4 Auditor General of Canada. The Auditor General of Canada, may, at the Auditor
General's of Canada's cost, after consultation with Ontario, conduct an inquiry under the
authority of Subsection 7.1 (1) of the Auditor General Actin relation to the use of funds
under the agreement. For the purposes of facilitating such inquiry, the Recipient shall:
a) be required to appoint Ontario as its agent for the purpose of any inquiry undertaken
by the Auditor General of Canada with respect to the use of funds under this
Agreement;
b) release to Ontario upon request and in a timely manner, for the purpose of releasing
to the Auditor General of Canada: all records held by the Recipient, or by agents or
contractors of the Recipient, relating to this Agreement and the use of funds; and
such further information and explanations as the Auditor General, or anyone acting
on behalf of the Auditor General may request relating to any part of this Agreement
of the use of funds.
'7.5 Information. The Recipient shall supply to OMAFRA, 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 OMAFRA may require. The Government of Ontario 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 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.
7.6 Information condition precedent for payment. If, in the opinion of OMAFRA, any of
the information requirements of this Article are not met, OMAFRA 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 BCF -CC, or any other
provincial program(s) (either current or future). In addition, OMAFRA may, in its sole
discretion, adjust the Financial Assistance for the Project.
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SECTION 8
OVERPAYMENT
8.1 Allowable Financial Assistance. Funds advanced to the Recipient prior to settlement
in accordance with Section 5.9 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, OMAFRA will determine the final
amount of Financial Assistance on the Project (the "Allowable Financial Assistance").
The Recipient agrees to repay to OMAFRA, upon receipt of a written demand and within
the period specified by OMAFRA, that portion of the total of the funds advanced that
exceeds the Allowable Financial Assistance applicable to the Project, as determined by
OMAFRA, as well as any funds used for a purpose other than that stated in the terms of
this Agreement, as determined by OMAFRA.
8.2 Deduction of overpayment. OMAFRA 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 BCF -CC or any other
provincial program(s) (either current or future). Any overpayment made on any other
project(s) of the Recipient under the BCF -CC or any other provincial programs) (either
current or future) may in turn be deducted from Financial Assistance payable on the
Project.
8.3 Interest on overpayment. OMAFRA 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 OMAFRA.
SECTION 9
INSURANCE AND BONDING
9.1 Insurance. The Recipient represents and warrants that it has, and shall maintain in full
force and effect for the term of the Agreement, at its own cost and expense, with insurers
having a secure A.M. Best rating of B+ or greater, or the equivalent, all the necessary
and appropriate insurance that a prudent person carrying out a project similar to the
Project would maintain, including commercial general liability insurance on an
occurrence basis for third party bodily injury, personal injury and property damage, to an
inclusive limit of not less than five million dollars ($5,000,000.00) per occurrence. The
commercial general liability insurance policy shall include the following:
(i) the Indemnified Parties as additional insureds with respect to liability
arising in the course of performance of the Recipient's obligations under,
or otherwise in connection with, the Agreement;
(ii) across liability clause;
(iii) contractual liability coverage; and
(vii) a 30 day written notice of cancellation, termination or material change.
9.2 Proof of Insurance. The Recipient shall provide OMFRA with certificates of insurance,
or other proof as may be requested by OMAFRA, that confirms the insurance coverage
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as provided for in Section 9.1. Upon the request of OMAFRA, the Recipient shall make
available to OMAFRA a copy of each insurance 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
Agreement:
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 $150,000.00 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 $150,000.00 covering the payment for labour, material or both.
SECTION 10
INDEMNITY
10.1 Indemnified Parties not liable. In no event shall the Indemnified Parties 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 the Canada -Ontario Building Canada Fund Communities
Component Agreement or 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 the Canada -Ontario Building Canada Fund
Communities Component Agreement or this Agreement or the Project.
10.2 Recipient to indemnify. The Recipient agrees to indemnify and hold harmless the
Indemnified Parties 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 Indemnified Parties 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 the
Indemnified Parties, for any incidental, indirect, special or consequential damages, or any
loss of use, revenue or profit, which the Indemnified Parties 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
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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
Recipientwill retain title to, and ownership of, the Infrastructure resulting from the Project
for at least ten (10) years after the Project's completion.
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:
Where Project asset is sold, leased, encumbered
or disposed of:
Repayment of contribution
in current dollars
Within 2 Years after Project completion
100%
Between 2 and 5 Years after Project completion
55%
Between 5 and 10 Years after Project completion
10%
10 Years after Project completion
0%
11.3 Notice. At any time during the ten (10) years following the date of completion of the
Project, the Recipient agrees to notify OMAFRA 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. OMAFRA 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 BCF -CC or any other provincial
program(s) (either current or future).
11.5 Revenue from Assets. The Recipient must identify to OMAFRA when a Project asset
generates revenues that exceed its costs, including operating costs, alternative financing
partnerships or public private partnerships costs and provisions for future life cycle costs
and where the intent of revenue generation was not identified in the application. The
Recipient must pay OMAFRA, upon request, that proportion of .excess, that is the same
percentage proportion as Canada's and Ontario's contribution was to the total cost of the
Asset. This obligation will apply only to the first ten (10) complete Fiscal Years following
the completion date of the Project.
11.6 Infrastructure Operation. The Infrastructure established with the Financial Assistance
from OMAFRA 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 "F". Any contravention of this provision shall give OMAFRA the right to adjust
the Financial Assistance.
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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
OMAFRA) 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 OMAFRA 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
organization that is carrying out work related to the Project.
12.2 Disclose potential conflict of interest. The Recipient shall disclose to OMAFRA
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 Government of Ontario 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 Her Majesty the Queen in right of Ontario are, 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 BCF -CC (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 BCF -CC 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 BCF -CC 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 BCF -CC Joint Secretariat may from
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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 BCF -CC Joint
Secretariat and upon the direction of the BCF -CC Joint Secretariat express
disclaimers to that effect; and
d) the Recipient agrees to promptly inform the BCF -CC Joint Secretariat of any
suspected infringement of any Licensed Marks by a third party.
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
BCF -CC 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 Indemnified Parties 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 Government of Ontario 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 is conducting and shall conduct its business in compliance with all federal
requirements as outlined in Schedule "E;"
C) it has authority and any necessary approval to enter into this Agreement and to
carry out its terms;
d) 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;
e) it validly exists as a legal entity with full power to perform and observe all of the
terms and conditions of this Agreement;
f) where applicable, it has passed by-laws required to undertake the Project;
g) it is now and will continue to be compliant with all Environmental Laws;
h) it owns or has a long-term lease (inclusive of any renewals) for the lands on
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which the Infrastructure is or will be located that expires no earlier than ten (10)
years following Project completion;
i) provided that the Recipient is not a municipality or a Crown Agency,
A. it is not anon -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 carry out
the Project;
j) it has the experience, financial health and ability to carry out this Project;
k) if the Recipient is a Local Government or a Crown Agency, it has the requisite legislative
authority to carry out the Project;
I) 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
m) all information provided during the BCF -CC application process remains true,
correct and complete in every respect except as set out to the contrary herein.
n) all Third Parties will be required to comply with all of the same.
14.2 Representations and warranties true condition precedent for payment. Upon
request, the Recipient shall provide OMAFRA 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, OMAFRA 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 Government of Ontario, 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 Government of Ontario any representation or warranty
made by the Recipient in this Agreement or any certificate delivered to the
Government of Ontario 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
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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 Government of Ontario;
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
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 Government of Ontario a material adverse change occurs
such that the viability of the Recipient as a going concern is threatened in the
opinion of the Government of Ontario, acting reasonably;
g) if in the opinion of the Government of Ontario 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 Government of Ontario, 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 Government of Ontario are beyond the control
of the Recipient;
i) if the Recipient has submitted false or misleading information to OMAFRA; or
D 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. OMAFRA 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 OMAFRA.
15.3 Remedies on default. Notwithstanding any other rights which the Government of
Ontario may have under this Agreement, if an Event of Default has occurred, the
Government of Ontario shall have the following remedies provided only that in the case
of an Event of Default which, in the opinion of OMAFRA in its sole discretion, is curable,
OMAFRA 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 OMAFRA may consent to in writing:
a) OMAFRA shall have no further obligation to provide any Financial Assistance for
the Project;
b) the Government of Ontario may, at its option, terminate this Agreement and
OMAFRA may, in its sole discretion, adjust the Financial Assistance. The total
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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 Government of Ontario may avail itself of any of its legal remedies that it may
deem appropriate.
15.4 Additional remedies. In addition to the remedies described in Section 15.3, the
Government of Ontario 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 Government of Ontario hereunder are cumulative and in
addition to, and not in substitution for, all other rights or remedies otherwise available to
the Government of Ontario.
15.5 Termination without cause. Notwithstanding anything else contained herein, the
Government of Ontario reserves the right to terminate this Agreement without cause
upon such conditions as the Government of Ontario may require, with a minimum of
seven (7) days written notice to the Recipient. If the Government of Ontario terminates
this Agreement prior to its expiration, the Government of Ontario, subject to all of the
Government of Ontario's rights under this Agreement, including, without limitation,
OMAFRA'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 OMAFRA that meets the requirements of
a Progress Report. Such report must be received by OMAFRA 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 "F" 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 Government of Ontario's or the Recipient's, as the case may be,
representative for the purpose of implementing this Agreement.
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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
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
Government of Ontario 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 this Agreement.
17.2 Time is 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 Government of Ontario shall
not be liable for any liquidated damages as a result of working days extensions.
17.3 Successors and assigns. This Agreement shall ensure 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 Government of Ontario 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 Government of Ontario'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 "E";
Schedule "F" (useful life of Project Infrastructure); and Schedule "G" (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
Government of Ontario may assign this Agreement on written notice to the Recipient.
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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 Province and the Recipient.
17.11 Interest. OMAFRA 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 OMAFRA.
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 Government of Ontario 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 Government of Ontario 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 Government of Ontario and/or the
Federal Government, to act as an agent of the Government of Ontario and/or the
Federal Government, or to bind the Government of Ontario and/or the Federal
Government in any manner whatsoever other than as specifically provided in this
Agreement.
17.14 Consultants. The Government of Ontario acknowledges that, in connection with
carrying out the Project, the Recipient may engage one or more Consultants. The
Government of Ontario 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 Lobbyists and Agent Fees. The Recipient warrants that any person hired, for
payment, or to speak or correspond with any employee or other person representing the
Recipient, concerning any matter relating to the contribution under this Agreement or
any benefit hereunder and who is required pursuant to the Lobbying Act, as amended, is
registered pursuant to that Act. The Recipient also warrants that it has not and nor will it
make a payment or other compensation to any legal entity that is contingent upon or is
calculated upon the contribution hereunder or negotiating the whole or any part of the
terms of this Agreement.
17.16 Cooperation. The Government of Ontario 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.
17.17 Data. The Recipient agrees that the Government of Ontario may, in its sole discretion,
gather and compile information and data required under this Agreement and disclose
such information and data to the Federal Government.
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17.18 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 —
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SCHEDULE "B"
DESCRIPTION OF THE PROJECT
BCF -CC FILE #23151 THE CORPORATION OF THE TOWN OF TILLSONBURG
WORK DESCRIPTION:
The Town of Tillsonburg proposes extensive upgrades including underground infrastructure to
bring Concession Street and Veterans Memorial Way (formerly Quarter Town Line Road) up to
current standards. This project would include road improvements such as increased road width,
increased pavement quality and construction of sidewalks, as well as upgrades to the sanitary
and storm sewers and watermains in the area of the road reconstruction.
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SCHEDULE "C"
ELIGIBLE AND INELIGIBLE COSTS
ELIGIBLE COSTS
C.1. Subject to Section C.2, Eligible Costs will be all direct costs which are in OMAFRA's
opinion properly and reasonably incurred and paid by the Recipient for an eligible
investment under a contract for goods or services necessary for the implementation of
the Project. Eligible Costs will include only the following:
a) the capital costs of acquiring, constructing or renovating a tangible capital asset, as
defined and determined according to Generally Accepted Accounting Principles;
b) the costs of joint communication activities (press releases, press conferences,
translation, etc.) and road signage recognition as described in Schedule "G";
c) all planning (including plans and specifications) and assessment costs such as the
costs of environmental planning, surveying, engineering, architectural supervision,
testing and management consulting services, to a maximum of 15% of total eligible
costs or 15% of the federal contribution, whichever is less;
d) the costs of engineering and environmental reviews, including environmental
assessments and follow-up programs as defined in the Canadian Environmental
Assessment Act and the costs of remedial activities, mitigation measures and follow-
up identified in any environmental assessment;
e) the costs of Project -related signage, lighting, Project markings and utility adjustments;
f) costs of First Nations consultation process;
g) the costs of developing and implementing innovative techniques for carrying out the
Project;
h) Recipient audit and evaluation costs as specified in this Agreement;
i) other costs that, in the sole opinion of OMAFRA, are considered to be direct and
necessary for the successful implementation of the Project and have been approved
in writing prior to being incurred; and
j) for Collaborative Projects the costs of planning, developing, and implementing:
(i) studies, strategies, or systems related to infrastructure integrated asset
management, which may include software acquisition and implementation;
(ii) studies, strategies, or systems related to infrastructure demand management;
(iii) feasibility studies for specific infrastructure Projects which at the time of the
study are not being actively considered for funding under the BCF -CC;
Page 25 of 37
BCF -CC Contribution Agreement for Infrastructure Projects File# 23151
(iv) training directly related to an eligible subcategory; and
(v) provincial long-term infrastructure plans.
Collaborative Project costs may include incremental training, travel, salaries and
other employee benefits of employees of the recipient directly engaged in these
activities, as well as the costs of adapting methodologies and technologies, software
acquisition and implementation, or other costs that are direct and necessary for the
successful implementation of a Project and that have been approved in advance,
and in writing, by the Oversight Committee.
C.2. INELIGIBLE COSTS
The following costs are ineligible for Financial Assistance:
a) costs incurred before February 13, 2009;
b) costs incurred after the Project completion date;
c) the cost of developing a business case or proposal for funding;
d) the cost of purchasing land and associated real estate and other fees;
e) financing charges and interest payments on loans;
f) leasing land, buildings, equipment and other facilities;
g) general repairs and maintenance of a Project work and related structures,
unless they are part of a larger capital expansion Project
h) services or works normally provided by the Recipient, incurred in the course of
implementation of the Project, except those specified as eligible costs;
i) the cost of any goods and services received through donations or in kind;
j) employee wages and benefits, overhead costs or other direct or indirect
operating, maintenance and administrative costs incurred by the Recipient, and
more specifically costs relating to services delivered directly by permanent
employees of the Recipient, or of a Crown corporation or corporation owned
and controlled by the Recipient except as per Section B.1 j) and k) above or in
cases where the Recipient can demonstrate value for money and that the costs
are incremental;
k) provincial sales tax and Goods and Services Tax, for which the recipient is
eligible for a rebate, and any other costs eligible for rebates;
1) costs associated with that portion of the works identified in Schedule "B" as
being specifically excluded from the Project; and
m) legal fees.
Page 26 of 37
BCF -CC Contribution Agreement for Infrastructure Projects File# 23151
SCHEDULE "D"
FINANCIAL ASSISTANCE
Total Eligible Costs: $195479471
Federal Maximum Financial Assistance: $515,824
Ontario Maximum Financial Assistance: $515,824
Maximum Financial Assistance: $1,031,648
OMAFRA 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. OMAFRA 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
Page 27 of 37
BCF -CC Contribution Agreement for Infrastructure Projects File# 23151
SCHEDULE "E"
FEDERAL REQUIREMENTS
OMAFRA and the Recipient agree to the following Federal Requirements:
1. The Recipient acknowledges and agrees that the amount of Financial Assistance being
provided by OMAFRA is dependent on the Government of Ontario receiving funds for the
Project from the Federal Government. Should the Government of Ontario not receive the
funds it expects to receive in relation to the Project from the Federal Government, OMAFRA
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 shall indemnify and hold harmless Canada, its officers, servants, employees
or agents, from and against all claims and demands, loss, damages, costs, expenses,
actions, suits or other proceedings by whomsoever made, sustained, brought, prosecuted,
threatened to be brought or prosecuted in any manner, based upon, 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 Project or the System;
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) any omission or other willful or negligent act of the Recipient, its employees, officers
or agents;
Except to the extent to which such claims and demands, losses costs, damages, actions,
suits or other proceedings relate to the act or negligence of an officer, employee or agent of
Canada in the performance of his or her duties.
3. 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.
4. 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.
5. 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 BCF -
CC (the "Federal Licensed Marks") and the Recipient is subject to the requirements of
Page 28 of 37
BCF -CC Contribution Agreement for Infrastructure Projects File# 23151
Section 13 (Communication and Recognition) of this Agreement, with appropriate changes,
in relation to the Federal Licensed Marks.
6. 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.
7. 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).
8. All of the provisions of this Schedule "E" shall survive the expiration or early termination of
this Agreement.
9. 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.
10. The Recipient acknowledges and agrees that the Federal Government may, in its sole
discretion, exercise OMAFRA's right to monitor the Project, perform audits and/or gather
data pursuant to the terms and conditions of this Agreement.
11. The Recipient warrants that:
a) it has not, nor has any person on its behalf, paid or provided or agree to pay or
provide, to any person, directly or indirectly, a commission, contingency fee or any
other consideration (whether monetary or otherwise) that is dependant upon the
execution of the Agreement or the person arranging a meeting with any Public Office
Holder as defined in the Lobbying Act;
b) it will not, during the term of this Agreement, pay or provide or agree to pay or
provide to any person, directly or indirectly, a commission, contingency fee or any
other consideration (whether monetary or otherwise) that is dependant upon the
person arranging a meeting with any Public Office Holder;
c) any person who, for consideration, directly or indirectly, communicated with or
arranged a meeting with any Public Office Holder, in respect of any aspect of this
Agreement, prior to the execution of the Agreement, was in compliance with all
requirements of the Act;
d) any person who, for consideration, directly or indirectly, during the term of this
Agreement and in respect of any aspect of this Agreement, communicates with or
arranges a meeting with any Public office Holder will be in compliance with all
requirements of the Act; and
e) at all relevant time the Recipient has been, is and will remain in compliance with the
Act.
Page 29 of 37
BCF -CC Contribution Agreement for Infrastructure Projects File# 23151
SCHEDULE "F"
ADDITIONAL PROVISIONS
The Government of Ontario 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 OMAFRA:
Ministry of Agriculture, Food and Rural Affairs
1 Stone Road West, 4th Floor
Guelph, Ontario
NIG 4Y2
Phone:
1-888-466-2372
Fax:
(519) 826-4336
E -Mail:
bcf.cc@ontario.ca
Attention: Dino Radocchia, Manager
(b) If to the Recipient:
Town of Tillsonburg
200 Broadway, 2nd Floor
Tillsonburg, Ontario
N4G 5A7
Phone: (519) 842-6428
Fax: (519) 842-9431
E -Mail: mgraves@town.tillsonburg.on.ca
Attention: David C. Morris, Chief Administrative Officer
2. Other provisions:
3. Other Reporting Requirements:
4. Useful Life of Project Infrastructure: [i.e., no. of years]
Page 30 of 37
BCF -CC Contribution Agreement for Infrastructure Projects File# 23151
SCHEDULE "G"
COMMUNICATIONS REQUIREMENTS
Unless specified otherwise in Schedule "F", for the purposes of this Schedule "G" the Recipient
shall follow these communications requirements.
Puraose 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
Government of Canada, the Government of Ontario and the Recipient.
General Principles
The Recipient agrees to work with BCF -CC officials and other partners to undertake
communication activities for the Project in an open, effective and proactive manner, ensuring
equal recognition of all parties making a significant financial contribution to the Project.
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 events, signs and plaques unless the BCF -CC Joint Secretariat specifies otherwise.
All events, signs and plaques will follow these Communications Requirements and any other
requirements that may be specified by the BCF -CC Joint Secretariat from time to time.
Both official languages will be used for public information, signs and plaques in accordance with
the Official Languages Act.
The Recipient may produce information kits, brochures, public reports and Web pages providing
information on the Project and Agreement for private -sector interest groups, contractors and
members of the public. The Recipient will consult with the Governments of Canada and Ontario
in preparing the content and look of all such material. All communications referencing the
Governments of Canada and Ontario must be approved.
Events
The Recipient agrees that all Project -related milestone events, such as groundbreaking and
ribbon -cutting ceremonies, will be organized in cooperation with the Governments of Canada
and Ontario and any other parties making a significant financial contribution to the Project.
The Recipient will coordinate a mutually agreeable venue, date and time for the event in light of
the availability of all participants. Unless agreed to in advance, no event should take place
without at least fifteen (15) working days' notice to all Parties.
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 Governments of Canada
and Ontario, prior to the event.
Page 31 of 37
BCF -CC Contribution Agreement for Infrastructure Projects File# 23151
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 the BCF -CC. The Governments of Canada and Ontario will assist the Recipient in
developing an agenda, news release, etc. All parties will approve and receive final copies.
Federal, provincial and municipal flags should also be on display at all BCF -CC events.
The Table of Precedence for Canada, as established by Canadian Heritage
(http://www.pch.gc.ca/pgm/ceem-cced/prtcl/precedence-eng.cfm), or some other mutually
acceptable protocol should be respected.
Signs and Plaques
The Recipient agrees to produce and install temporary and permanent Project signage to,
communicate the nature of the Project and the involvement of the Governments of Canada and
Ontario and the Recipient, as outlined in the BCF -CC Style Guide.
Generally, the Recipient must ensure that
• signage wording is in both official languages; the Government of Canada can provide
French translation services;
official designs and logos of the Governments of Canada and Ontario and the Recipient are
used, are of the same size and occupy the same amount of space; and,
any other message, as well as specifications on signage and timeframe for installation, are
approved by the BCF -CC Joint Secretariat.
'The Recipient must ensure that proofs of all Project signs and plaques are approved by the
BCF -CC Joint Secretariat before installation.
A BCF -CC Style Guide and digital templates will be made available on the BCF -CC website at
www.BCFontario.ca. For more information, please contact the BCF -CC Joint Secretariat at 1-
888-466-2372.
Eligible Costs
The Recipient will pay the costs of preparing and delivering communications activities and
products, including the organization of special events and the production of signage. These
costs are deemed to be Eligible Costs under the Agreement as specified below.
For the purposes of events, Eligible Costs include the following:
• Printing and mailing invitations
• Light refreshments, such as coffee, tea, juice, donuts, muffins, snacks
• Draping for plaque unveiling
• Project material for display and/or media kit
• Temporary signage
• Rentals such as:
• flagpoles
• stage
Page 32 of 37
BCF -CC Contribution Agreement for Infrastructure Projects File# 23151
• chairs
• podium
• PA system
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.
For the purposes of signage, Eligible Costs include the following:
Maximum costs of $2,250 for a small sign and $4,250 for a large sign
Maximum costs of $2,500 for a permanent plaque
Page 33 of 37
BCF -CC Contribution Agreement for Infrastructure Projects File# 23151
SCHEDULE "H"
EXPENDITURE REPORT
Canada "r Ontario
Building Canada Fund — Communities Component (BCF -CC)
Fonds chantiers Canada -Ontario Le volet Collectivites (FCC -VC)
RECIPIENT EXPENDITURE REPORT
Recipient Name:
File Number:
Contract Status:
Quarter
(April -June)
Q1
(July -Sept.)
Q2
(Oct. -Dec.).
Q3
(Jan .- March)
Q4
2009/10
2010/11
2011!12
2012/13
2013/14
2014/15
2015/16
Prepared By:
Phone Number:
Report Date:
NOTES:
1) Please only include Net Eligible Expenditures -- 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 expenditures along with an explanation of the
change
Page 34 of 37
BCF -CC Contribution Agreement for Infrastructure Projects
SCHEDULE 661"
PROGRESS REPORT
Canada
File# 23151
Ontario
Building Canada Fund — Communities Component (BCF -CC)
Fonds chantiers Canada -Ontario Le volet Collectivites (FCC -VC)
Progress Report
Rapport sur 1'etat d'avancement des travaux
Report # / Rapport no of / de File # / Dossier no
Project Start Date / Date de debut du projet
Project End Date / Date de fin du projet :
Recipient Name / Nom de la beneficiaire
Estimated % of Project Completion / Estimation du pourcentage des travaux realises : %
Description of Activities During this Period / Description des activites pendant tette
periode:
Issues /Points a souligner
Signature / Signature: Date / Date:
Page 35 of 37
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