HomeMy WebLinkAbout09 128 Infrastructure Stimulus Fund Contribution Agreement By-Law
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THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
BY-LAW
NO. 2009 -128
BEING A BY-LAW TO AUTHORIZE THE SIGNING OF
A CONTRIBUTION AGREEMENT WITH HER MAJESTY THE QUEEN IN
RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF
ENERGY AND INFRASTRUCTURE
(INFRASTRUCTURE STIMULUS FUND (ISF))
WHEREAS Sections 8 (1) and 9 of the Municipal Act, 2001, S.O. 2001, c. 25, as
amended, provide that the powers of a municipality under this or any other Act
shall be interpreted broadly so as to confer broad authority on the municipality to
enable the municipality to govern its affairs as it considers appropriate and to
enhance the municipality's ability to respond to municipal issues and 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 Government of Canada has established a $4 billion ISF
under Canada's Economic Plan to mitigate against the impacts of the global
economic recession by increasing the total amount of construction activity to
projects that can start and be substantially completed in fiscal years 2009-2010
and 2010-2011 ;
AND WHEREAS The Corporation of the Municipality of Kincardine submitted an
application under the ISF in consideration of upgrades to the facilities at the
Connaught Park Fair Grounds, hereinafter referred to as the 'Project';
AND WHEREAS the Municipality of Kincardine's application has been reviewed
and approved for conditional funding support;
AND WHEREAS this Agreement defines the terms and conditions of a financial
contribution from the Government of Canada and the Government of Ontario to
assist with the Project under ISF which is being administered by the Government
of Ontario;
AND WHEREAS the Council of The Corporation of the Municipality of Kincardine
deems it advisable to enter into a Contribution Agreement with her Majesty the
Queen in Right of Ontario as represented by the Minister of Energy and
Infrastructure, attached hereto as Schedule "A";
NOW THEREFORE the Council for The Corporation of the Municipality of
Kincardine ENACTS as follows:
1. That The Corporation of the Municipality of Kincardine enter into a
Contribution Agreement with Her Majesty the Queen in Right of Ontario as
represented by the Minister of Energy and Infrastructure for funding under the
Infrastructure Stimulus Fund (ISF) for upgrades to the facilities at the
Connaught Park Fair Grounds.
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Infrastructure Stimulus Fund Contribution Agreement By-law
By-law No. 2009 - 128
2. That the Mayor and CAO be authorized to sign, on behalf of The Corporation
of the Municipality of Kincardine, the Contribution Agreement with Her
Majesty the Queen in Right of Ontario as represented by the Minister of
Energy and Infrastructure, attached hereto as Schedule "A".
3. That this By-law shall come into full force and effect upon receipt by the
Municipality of Kincardine of a duly signed copy of the Contribution
Agreement with the Minister of Energy and Infrastructure for the Province of
Ontario.
4. This By-law may be cited as the "Infrastructure Stimulus Fund Contribution
Agreement By-law".
COND TIME this 2nd day of September, 2009.
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Clerk
nd FINALLY PASSED this 2nd day of September, 2009.
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Clerk
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THIS AGREEMENT made in quadruplicate as of the "Z(, day of Ocfo~, 2009.
BET WEE N:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO,
as represented by the Minister of Energy and Infrastructure
and the
Minister of Agriculture, Food and Rural Affairs (referred to herein jointly as
"Ontario" and as "OMAFRA" in the latter case)
AN D:
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
(referred to herein as the "Recipienf)
WHEREAS the Government of Canada has established a $4 billion Infrastructure Stimulus
Fund (ISF) under Canada's Economic Plan to mitigate against the impacts of the global
economic recession by increasing the total amount of construction activity to projects that can
start and be substantially completed in fiscal years 2009-2010 and 2010-2011 ;
AND WHEREAS the Government of Ontario also recognizes the impacts of the global
economic recession on the Province of Ontario and is actively mitigating against those impacts
by increasing the total amount of construction activity to projects that can start and be
substantially completed in fiscal years 2009-2010 and 2010-2011;
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AND WHEREAS the purpose of the Infrastructure Stimulus Fund Contribution Agreement- .
("Agreemenf) is directed at capital projects that involve moveable or non-moveable.::a~s,
constructed, rehabilitated, or improved, in whole or in part; i i:-:'
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AND WHEREAS this Agreement defines the tenns and conditions of a financial.c~bution--
from the Government of Canada and the Government of Ontario to assist with prorects under
ISF which is being administered by the Government of Ontario; , , -, .
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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 Tenns and Conditions
Schedule "B" - Description of the Project(s)
Schedule "C" - Eligible and Ineligible Costs
Schedule "D" - Project Financial Assistance
Schedule "E" - Government of Canada Requirements
Schedule "P - Additional Provisions
Schedule "G" - Communications Requirements
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ISF Contribution Agreement
Schedule "H" - Expenditure and Job Creation Report
Schedule "I" - Claims and Progress Statement
Schedule" J" - Final Report
Schedule "K" - Solemn Declaration of Substantial Completion
Schedule "l" - Aboriginal Consultation Protocol
constitutes 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 Minister of Energy and Infrastructure
by:
Name: Th no rable George Smitherman Date
Title: De rt remier and Minister of Energy and Infrastructure
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OCT 1 B 2009
and by the Minister of Agriculture, Food and Rural Affairs
by:
OCT 2 l:i 2009
Date
Name: T Honourable Leona Dombr ky
Title: Minister of Agriculture, Food and Rural Affairs
RECIPIENT'S NAME: THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
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Name: John deRosenroll
Title: CAO
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I/we have authority to bind the Recipient
Page 2 of 44
ISF Contribution Agreement
SCHEDULE "A"
GENERAL TERMS AND CONDmONS
SECTION 1
DEFINmONS 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:
"Aboriginal Group(s)" includes the Indian, Inuit and the Metis peoples of Canada or any other
group that has legally been recognized as holding Aboriginal or treaty rights under section 35 of
the Constitution Act, 1982.
"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
ISF, 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 Infrastructure Stimulus Fund Contribution Agreement, including the
cover and execution pages and all of the Schedules, 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 Schedule "A" .
"Asset" means any moveable or non-moveable asset, constructed, rehabilitated, or improved, in
whole or in part, with Financial Assistance contributed by the Government of Canada and the
Government of Ontario under this Agreement.
"Business Day" means any day on which Government of Ontario offices generally are open for
business in the Province of Ontario.
"Claim and Progress Statement" has the meaning given to it in Section 6.3 of Schedule "A".
"Claims Submission" has the meaning given to it in Section 6.3 of Schedule "A".
"Class of Asset" means a
a) Local Government Asset;
b) Not-For-Profit Private Sector Asset;
c) For-Profit Private Sector Asset; or
d) Provincial Asset.
"Communication Requirements" means the communication requirements set out in Schedule
"G", 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
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ISF Contribution Agreement
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, A.S.O. 1990, c.
C.48, as amended.
"Eligible Costs" means the costs so described under Part C.1 of Schedule "C" and Schedule
"G".
"End of Financial Assistance Date" means March 31, 2011.
"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, A.S.O. 1990, c. E. 19, as
amended, the Environmental Assessment Act, A.S.O. 1990, c. E. 18, as amended, the Ontario
Water Resources Act, A.S.O. 1990, c. O. 40, as amended the Canadian Environmental
Protection Act 1999, S.C. 1999, c. 33, as amended, the Canadian Environmental Assessment
Act, S.C. 1992, c. 37, as amended, the Fisheries Act, A.S.C. 1985, c. F-14, as amended and
the Navigable Waters Protection Act, A.S.C. 1985, c. N-22, as amended.
"Event of Default" has the meaning given to it in Section 15.1 of Schedule "A".
"Expenditure and Job Creation Report" has the meaning given to it in Section 6.2 of Schedule
"A" and Schedule "H".
"Expiration Date" means March 31, 2012.
"Federal Ucensed Marks" has the meaning given to it in Section 5 of Schedule "E".
"Federal Maximum Financial Assistance" has the meaning set out in Schedule "0".
"Final Report" has the meaning given to it in Section 6.4 of Schedule "A".
"Final Report Date" means April 15, 2011.
"Financial Assistance" means the funds paid 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.
"For-Profit Private Sector Asset" means an Asset that is owned, or will be owned, by a for-
profit private sector entity.
Government of Canada" means Her Majesty the Queen in right of Canada.
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ISF Contribution Agreement
"Government of Ontario" means Her Majesty the Queen in right of Ontario.
"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 !he costs so described under Part C.2 of Schedule "eft.
"Licensed Marks" has the meaning given to it in Section 13 of Schedule "A".
"Local Government Asset" means an asset that is owned, or will be owned, by a local or
regional government established under the laws of Ontario.
"Local Services Board" means a Local Services Board established under the Northern
Services Boards Act, R.S.O. 1990, c. L. 28, as amended.
"Maximum Financial Assistance" has the meaning set out in Section 4.6 and Schedule "D".
"Not-For-Profit Private Sector Asset" means an Asset that is owned, or will be owned, by a
not-for-profit private sector entity.
"Ontario Maximum Financial Assistance" has the meaning set out in Schedule "0".
"Project" means the project or projects as described in Schedule "S".
"Project Completion Date" means March 31, 2011.
"Project Construction Start Date" has the meaning given to it in Schedule "8".
"Project Status Report" has the meaning given to it in Section 6.1 of Schedule "A".
"Provincial Asset" means an Asset that is owned, or will be owned, by the Government of
Ontario or by a public sector body that is established by or under Ontario statute or by or under
regulation.
"Recipient" has the meaning given to it on the first page of this Agreement.
"Solemn Declaration of Substantial Completion" is referred to in Section 6.5 and Schedule
"K".
"Substantially Completed" has the same meaning as and shall be determined in accordance
with "substantially performed" in subsection 2(1) of the Construction Lien Act, R.S.O. 1990-, c.
C.30, as amended, and "substantial completion" shaH have a corresponding. meaning.
"Term" has the same meaning set out in Section 2.1.
"Total Eligible Costs" has the meaning set out in Schedule "D".
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ISF Contribution Agreement
1.2 Herein, ete. 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
effect of supplementing or superseding such statute or regulations.
1.5 Gender, singular, etc. Words importing the masculine gender include the feminine or
neutral gender and words in the singular include the plural, and vice versa.
1.6 OMAFRA Approvals. Any reference to, or requirement for, OMAFRA's approval 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 Projecfs state of completion, the Government of Ontario shall not be
obligated to provide Financial Assistance under this Agreement for any costs incurred
after the End of Financial Assistance Date. The Recipient will be responsible for any
financial obligations after that date related to the Project or this Agreement.
2.3 Project Completion Date. The Recipient shall complete the Project by the Project
Completion Date. The Government of Ontario shall not be obligated to provide Financial
Assistance under this Agreement for any costs incurred after the Project Completion
Date. The Recipient will be responsible for any risks and obligations to complete the
Project if the Recipient fails to complete the Project by the Project Completion Date. The
Recipient will also be responsible for completing the Project as soon as possible after
the Project Completion Date.
SEC"nON 3
ELIGIBLE COSTS
3.1 Eligible Costs. 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 worf(s are not eligible for Financial Assistance.
3.2 Discretion of OMAFRA. Subject to Section 3.1, the eligibility of any costs not listed in
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ISF Contribution Agreement
Part C.1 of Schedule "C" will be determined in accordance with the policies and
guidelines (if any) established by OMAFRA to administer the ISF. The final
determination of the eligibility of any costs claimed is at the sole and absolute discretion
of OMAFRA.
3.3 Retention of Receipts. The Recipient shall retain all accounts, documents and 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 and shall be retained until six (6) years after the Substantial Completion
of the Project, any extension thereof or for such period as OMAFRA in its sole discretion
may, in writing, direct.
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 the Government of Ontario'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 may be deemed, at OMAFRA's sole
and absolute discretion, ineligible for Financial Assistance.
SECTION 4
FINANCIAL ASSISTANCE
4.1 Use of Financial Assistance. The Financial Assistance is intended for and shall be
used only for Eligible Costs incurred by the Recipient.
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 Reporting. The Recipient is required to submit Project Status Reports and Expenditure
and Job Creation Reports to OMAFRA pursuant to Section 6.1 and Section 6.2 of
Schedule "A" prior to OMAFRA releasing any Financial Assistance.
4.4 Financial Assistance Advanced. Based on submitted Expenditure and Job Creation
Report projections demonstrating that Eligible Costs will be incurred in 2009-10,
OMAFRA may provide to the Recipient up to 25% of Eligible Costs expected to be
incurred in 2009-10 prior to OMAFRA receiving evidence that the associated Eligible
Costs have already been incurred by the Recipient (the "advance payrnent(sr}. The
Recipient is required to submit invoices demonstrating full use
of the advanced payments in subsequent Claim and Progress Statements to OMAFRA.
Further Eligible Costs incurred in 2009-10 will only be reimbursed following the
Recipient's submission of invoices to OMAFRA and showing the full use of the advanced
payment. If the Recipient is unable to provide invoices by March 31, 2010 demonstrating
full-use of the advanced payment, the Government of Ontario retains.the right to
demand repayment of any unused Financial Assistance.
Based on submitted Expenditure and Job Creation Report projections demonstrating
that Eligible Costs wu. be incurred in 2010-11, OMAFRA may provide to the Recipient up
to 25% of Eligible Costs expected to be incurred in 2010-11 prior to OMAFRA receiving
evidence that the associated Eligible Costs have already been incurred by the Recipient
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ISF Contribution Agreement
(the "further advance payment(s)"). The Recipient is required to submit invoices
demonstrating full use of the further advanced payments in subsequent Claim and
Progress Statements to OMAFRA. All other Eligible Costs incurred will only be
reimbursed following the Recipient's submission of invoices to OMAFRA and showing
the full use of the further advanced payment. If the Recipient is unable to provide
invoices by March 31, 2011 demonstrating full-use of the further advanced payment, the
Government of Ontario retains the right to demand repayment of any unused Financial
Assistance.
4.5 Deposit of Rnancial Assistance In Canadian Financial Institution and Interest on
Financial Assistance Advanced. All Financial Assistance provided, including any
advanced or further advance payments as well as all interest earned thereon, shall be
deemed to remain the property of the Government of Ontario and must be held by the
Recipient for the Government of Ontario in an interest bearing account in the name of
the Recipient at a Canadian financial institution, pending payment of Eligible Costs. The
amount of interest earned (if any) shall be reported to OMAFRA. If the Recipient earns
any interest on the advanced Financial Assistance:
a) OMAFRA may deduct an amount equal to the interest from any other instalments
of Financial Assistance; or
b) The Recipient shall pay an amount equal to the interest to OMAFRA if directed
by OMAFRA.
4.6 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 "D".
4.7 Excess Financial Assistance. The Recipient shall immediately notify OMAFRA should
the Project require less than the Total Eligible Costs to be Substantially Completed, or
where additional funding is secured from other government sources such that the total
funds available to the Recipient for the Project (including the Financial Assistance)
exceed the Maximum Financial Assistance. OMAFRA may, in its sole and absolute
discretion, Adjust the Financial Assistance on the Project.
4.8 Interdependent Projects. Where implementation of a 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 and absolute, Adjust the
Financial Assistance for the. Project.
4.9 Recipient Not Carrying out Project. The Recipient shall immediately notify OMAFRA
if it does not intend to carry out any Project in whole or in part as specified in Schedule
"B" hereto, in which case OMAFRA may, in its sole and absolute discretion, Adjust the
Financial Assistance for the Project.
4.10 New/nformation. 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 and absolute discretion, Adjust the Financial
Assistance for the Project.
4.11 Alternatives to Project. If the Recipient becomes aware of any means of completing
either the Project's objective or the Project itself that are more cost effective, the
Recipient shall immediately notify OMAFRA, in which case OMAFRA may, in its sole
and absolute discretion, Adjust the Financial Assistance. Likewise, if OMAFRA
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ISF Contribution Agreement
becomes aware of any alternative means of completing either the Project's objective or
the Project itself that are more cost effective, the Recipient will be notified and OMAFRA
may, in its sole and absolute discretion, Adjust the Financial Assistance.
4.12 Transfer of Financial Assistance between Projects. The Recipient shall not transfer
Financial Assistance assigned to one Project to another Project listed in Schedule B
hereto without the express written consent of OMAFRA.
4.13 Goods and Services Tax. 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,
R.S.C. 1985, c. E-15, as amended, net of any applicable rebates. If and when the
Harmonized Sales Tax is phased in within the Province of Ontario, the Financial
Assistance will be based on the net amount of the Harmonized Sales Tax to be paid by
the Recipient, net of any applicable rebates.
4.14 Withholding Payment. OMAFRA may, in its sole and absolute 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 and all applicable federal,
provincial or municipal laws, and all rules, regulations, by-laws, notices, orders,
approvals, directives, protocols, policies and guidelines.
4.15 Financial Assistance upon Expiry. Without limiting any rights OMAFRA has under
this Agreement, at law or in equity, OMAFRA shall have the right to be repaid by the
Recipient, in whole or in part, for Financial Assistance advanced and unspent by the
Recipient for a Project that has not been completed by the Project Completion Date.
4.16 Limitation on Payment of Financial Assistance. Notwithstanding. section 4.4 of this
Agreement, OMAFRA may choose not to advance any Financial Assistance to the
Recipient until the Recipient provides the insurance certificate or other documents
provided for in section 9 of Schedule "A".
4.17 Insufficient Funds Provided by the Legislature of Canada. If, in the opinion of the
Government of Ontario, the Legislative Assembly of Ontario or the Govemment of
Canada 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
Schedule "A".
SEcnON 5
PROJECT AWARD, CONSULTATIONS WITH ABORIGINAL GROUP(S), 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
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ISF Contribution Agreement
Ontario shall not be responsible in any way whatsoever for the undertaking,
implementation and completion of the Project or any interdependent project of others
unless the Project relates to a Provincial Asset.
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, unless the Project relates to a Provincial Asset.
5.4 Consultations with Aboriginal Group(s). The Recipient agrees to be bound by the
terms of the Aboriginal Consultation Protocol set out in Schedule "l".
5.5 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.
5.6 Competitive Process. The Recipient shall acquire and manage its equipment, services
and supplies, including any construction component, required for the Project through a
transparent, competitive process that ensures the best value for the Financial Assistance
expended. Where the Recipient is a municipal entity, the Recipient shall follow its
procurement policies as required by the Municipal Act, 2001, 2001, S.O. c. 25, as
amended or, for the City of Toronto, the City of Toronto Act, 2006, S.O. 2006, c. 11,
Schd. A, as amended. Where the Recipient is a not-for-profit private sector entity, a for-
profit private sector entity or a local Services Board, the Recipient shall 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 for municipal Recipients, not-for-
profit private sector Recipients, for-profit private sector Recipients or local Services
Board Recipients may be waived with prior written approval by OMAFRA if:
a) the equipment, services and supplies 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.
5.7 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 5.6 of Schedule "A" and the
requirements of this Section 5.7, the requirements referenced in this Section 5.7 shall
apply.
5.8 Final Claim. The Recipientshall submit .its final claims for all costs incurred by the End
of Financial Assistance Date with the required documentation, including the Final Report
as per Section 6.4 of Schedule "A", for approval, cost reviews, audits (including any
value for money audits that OMAFRA may decide to undertake in its sole and absolute
discretion) within 90 days following the Substantial Completion of the Project and no
later than the Final Report Date, which date is earlier, or such later date as is specified in
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ISF Contribution Agreement
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, any documentation required
for approval, cost reviews and audits.
5.9 Commencement of Project. The Recipient shall begin the Project within sixty (60)
days of the Project construction start date, as per Schedule S, or such other period as
OMAFRAmay allow, failing which this Agreement may be terminated pursuant to
Section 15.
5.10 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 fullest extent
possible;
c) . be consistent with all policies and procedures the Government of Canada and/or
the Government of Ontario may provide to the Recipient in relation the ISF;
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 any policies and procedures the Government of
Ontario may provide to the Recipient;
e) require that the parties thereto comply with any and all applicable federal,
provincial or municipal laws, and all rules, regulations, by-laws, notices, orders,
approvals, directives, policies, protocols and guidelines; and
f) authorize the Governments of Canada and Ontario of to collect, use and disclose
information and data gathered- by parties, perform audits and monitor the Project
as they see fit.
SECTION 6
REPORTING REQUIREMENTS
6.1 Project Status Report. The Recipient shall submit monthly Project Status Reports in
the format prescribed by OMAFRA including. such information as estimated percentage
of project completion, tender call dates, tender award dates, forecast and actual
construction start and end dates, and- aU other information respecting the progress of the
Project that may be . requested by OMAFRA or of which the Recipient becomes aware
that m~yaffect the Project's timely completion.
In addition, and without limitation by the communications requirements set out else
wherein this Agreement, the Recipient shall also submit copies of aU communications
and public information materials related to the Project with the Project Status Reports.
6.2 Expenditure and Job Creation Report. The Recipient shall, at a minimum, submit to
OMAFRA a quarterly Expenditure and Job Creation Report, as set out in Schedule "H"
hereto and which may be amended by OMAFRA from time to time, for each Project
Page 11 of 44
ISF Contribution Agreement
listed in Schedule "B", to OMAFRA on or before May 15, August 15, November 15 and
February 15 for each Fiscal Year.
6.3 Claims Submission. All Recipient Claim Submissions shall include, but are not limited
to, the following report:
Claim and Progress Statement. The Recipient shall provide OMAFRA with a
duly executed report in the form set out in Schedule "I" ("Claim and Progress
Statemenr) that shall contain information to allow OMAFRA to assess the
progress of the Project and OMAFRA may amend the Claims and Progress
Statement from time to time, as well as the eligibility of that portion of the Project
for which disbursement is being requested and the individual Project tasks and
milestones.
. 6.4 Final Report. Within 90 days of the Project becoming Substantially Completed 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 Reporr as set out in Schedule" J") for
the Project to OMAFRA in a manner satisfactory to OMAFRA and the Recipient shall
follow such administrative procedures as are specified from time to time by OMAFRA.
Upon acceptance of the Final Report and the processing of final claims, OMAFRA shall
not be obligated to consider any further claims in relation to the Project.
6.5 Solemn Declaration of Substantial Completion. Within ninety (90) days of the Project
becoming Substantially Completed and no later than the Final Report Date, or such later
date as is specified in writing by OMAFRA, the Recipient shall submit a fully executed
Solemn Declaration of Substantial Completion, as set outby Schedule "I<", for all
Projects for which Eligible Costs have been claimed.
SEcnON 7
RECORDS AND AUDIT
7.1 Separate Records. The Recipient shall maintain separate records and documentation
for each Project listed in Schedule "B" and shall keep all records and documentation for
six (6) years after the submission of the final claims referred to in Section 5.9 of
Schedule "A".
7.2 Provide Records to OMAFRA. The Recipient shall provide to OMAFRA, upon request
and at the Recipienfs 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, Consultants relating to
the Project or any other project(s) of the Recipient under the ISF, or any other
Government of Ontario program(s), for the purposes of cost reviews, audits (including
any value for money audits that OMAFRA may decide to undertake in its sole and
absolute discretion) settlement, as may be required by OMAFRA, of the Project or any
other project(s) of the Recipient under the ISF, or any other Government of Ontario
program(s). Such material shall be provided in a form and manner satisfactory to
OMAFRA.
7.3 External Auditor. OMAFRA may require the assistance of an external auditor to carry
out a review of the material referred to in Sections 7.1 and 7.2 of Schedule "A". If so, the
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ISF Contribution Agreement
7.4
~ (-
7.5
7.6
7.7
8.1
Recipient shall, upon request, retain an external auditor acceptable to OMAFRA at the
Recipienfs sole expense. The Recipient shall ensure that any auditor who conducts a
financial or program review pursuant to this section of the Agreement or otherwise,
provides a copy of the report to OMAFRA for its consideration at the same time that the
report is given to the Recipient.
Auditor General of Canada. The Auditor General of Canada, may, at the Auditor
General of Canada's cost, conduct an audit with respect to the use of Financial
Assistance under this Agreement. For the purposes of facilitating such inquiry, the
Recipient shall release to OMAFRA 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/or the
Financial Assistance; 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 Financial Assistance.
Auditor General of Ontario. The Auditor General of Ontario, may, at the Auditor
General of Ontario's cost, conduct an audit with respect to the use of Financial
Assistance under this Agreement. For the purposes of facilitating such inquiry, the
Recipient shall release to OMAFRA upon request and in a timely manner, for the
purpose of releasing to the Auditor General of Ontario: all records held by the Recipient,
or by agents or Contractors of the Recipient, relating to this Agreement and/or the
Financial Assistance; and such further information and explanations as the Auditor
General, or anyone acting on behalf of the Auditor General may request relating to the
Financial Assistance.
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 Canada and the Government of Ontario,
their respective agents and employees, including the Auditor General's Office, shall be
allowed access to the Recipienfs premises and staft 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) complete any other auditing or monitoring that
may be reasonably required in relation to the Project.
Information Condition Precedent for Payment. If, in the opinion of OMAFRA, any of
the information requirements of this Section 7 are not met, OMAFRA may, in its sole and
absolute discretion, require the information as a condition precedent to any payment in
relation to the Project(s) of the Recipient under the ISF, or any other provincial
program(s) (either current or future). In addition, OMAFRA may, in its sole and absolute
discretion, Adjust the Financial Assistance for the Project.
SECTION 8
OVERPAYMENT AND FAILURE TO SUBSTANTIALLY COMPLETE CONTRACT WITHIN
TIMELlNES
Allowable Financial Assistance. Financial Assistance paid to the Recipient prior to the
submission of a.Final Report in accordance with Section 5.9 of Schedule "A" 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 win
determine the final amount of Financial Assistance on the Project (the "Allowable
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ISF Contribution Agreement
Financial Assistance"). For certainty, the allowable Financial Assistance shall not
exceed the Maximum 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 Financial Assistance that exceeds the Allowable Financial Assistance
applicable to the Project (an "overpayment"), as determined by OMAFRA, as well as any
Financial Assistance 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 overpayments of Financial
Assistance for the Project from financial assistance payable on any other Project(s) of
the Recipient under the ISF or any other Government of Ontario program(s) and/or
Government of Canada program(s) that are delivered by the Government Ontario on
behalf of the Government of Canada (either current or future). Any overpayment made
on any other Project(s) of the Recipient under the ISF or any other Government of
Ontario program(s) (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 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.
8.4 Recovery of Financia' Assistance. Where Eligible Costs committed to a Project have
not been incurred, OMAFRA may withdraw any unspent Financial Assistance for the
Project if it has not started construction on its scheduled start date or if a Project has
started construction but for which progress is not to the satisfaction of Ontario.
SEcnON 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) a cross 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 OMAFRA with certificates of
insurance, or other proof as may be requested by OMAFRA, that confirms the insurance
Page 14 of 44
ISF Contribution Agreement
coverage as provided for in Section 9.1 of Schedule "A". 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.
9.4 Alternatives, reduction or waiver. Notwithstanding the requirements set out in Section
9.3, in the event that the Recipient provides a written business case to obtain approval to
put into effect and maintain an alternative form of security or to reduce or eliminate the
bonds for construction Contracts of $350,000.00 or less, OMAFRA, in its sole discretion,
may accept an alternative form of security, reduce or waive the bonding requirements in
whole or in part.
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 Infrastructure Stimulus Fund Agreement
or this Agreement or the Project; or
b) any incidental, indirect, special or consequential damages, or any loss of use,
revenue or profit to the Recipient, its employees, agents, or Consultants arising
out of or in any way related to the Canada-ontario Infrastructure Stimulus Fund
Agreement or this Agreement or the Project.
10.2 Recipient to Indemnify. Where the Recipient is a municipality, a not-for-profit private
sector entity, a for-profit private sector entity or a Local Services Board, 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 Uen Act, R.S.O. 1990, c. C.30, as amended-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, agents and Consultants, 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
Page 15 of 44
ISF Contribution Agreement
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, agents and Consultants, 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 Governments of Canada
and Ontario, the Recipient will retain title to, and ownership of, the Asset resulting from
the Project(s) for at least five (5) years after the completion of the Project(s).
11.2 Repayment. In the event that at any time within five (5) years from the date of
completion of the Project(s), 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, 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
Governments of Canada and Ontario, on demand, a proportionate amount of the
Financial Assistance, as follows:
Repayment of contribution
in current dollars
100%
55%
0%
11.3 Notice. At any time during the five (5) 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 in section 11.2 of Schedule "A", at least one hundred
eighty (180) days in advance.
11.4 Deduction from Financial Assistance. OMAFRA may, in its sole and absolute
oiscretion, deduct the amount of Financial Assistance to. be repaid by the Recipient
under Section 11.2 of Schedule "A" from Financial Assistance payable by the
Government of Ontario to the Recipienton any other project(s) of the Recipient under
the ISF or any other Government of Ontario program(s) (either current or future) and
provide that money to the Governments of Canada and/or Ontario.
11.5 Revenue from Assets. The Recipient must identify to OMAFRA when an Asset in any
given Fiscal Year 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
Page 16 of 44
ISF Contribution Agreement
the application. Within the first five (5) complete Fiscal Years following the Substantial
Completion of a Project, OMAFRA may, in its sole and absolute discretion, deem the
amount of revenue from that Project that is proportional to the Government of Canada's
and the Government of Ontario's Financial Assistance to the total cost of the Asset to be
an overpayment of Rnancial Assistance (the "deemed overpaymenr). The Recipient
shall pay OMAFRA, upon request, the deemed overpayment,.
11'i6 Asset Operation. The Asset established with the Financial Assistance under this
Agreement shall be used, maintained and operated for a period of at least one half of the
expected useful life of the Asset after Substantial Completion of the Project as set out in
Schedule lOP. Any contravention of this provision shall give OMAFRA the right to
recover a portion or all of the Financial Assistance to those Project(s) provided under this
Agreement.
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, sub-contractors, 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, as
determined in the sole and absolute 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 the Government 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 the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as
amended binds the Ontario Government.
SECTION 13
RECOGNmON
13.1 Licensed Marks. The Recipient acknowledges that the Governments of Canada and
Ontario are, win 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 the ISF (all such current and future marks, being the "Licensed Marks").
13.2 Acknowledgement in Advertising and Publicity. The Recipient agrees to
acknowledge the Rnancial Assistance of the Governments of Canada and Ontario 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 as per Schedule "G".
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ISF Contribution Agreement
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 Governments of Canada and Ontario, or their delegates responsible for
administering the ISF. The Recipient agrees that it will not alter, modify, dilute or
otherwise misuse the licensed Marks;
b) the Recipient agrees to submit to the Governments of Canada and Ontario, or
their delegates responsible for administering the ISF, 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 may from time to time and upon
reasonable notice be required;
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 Governments of
Canada and Ontario, or their delegates responsible for administering the ISF and
shall, upon notification, express disclaimers to that effect; and
d) the Recipient agrees to promptly inform the Governments of Canada Ontario, or
their delegates responsible for administering the ISF 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
Governments of Canada and Ontario, or their delegates responsible for administering
the ISF, 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.
SECTION 14
COVENANTS, REPRESENTATIONS AND WARRANTIES
14.1 General. 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, approvals, directives, protocols, policies and guidelines;
b) it is conducting and shall carry on its business in compliance with all Government
of Canada 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
Page 18 of 44
ISF Contribution Agreement
order to carry out the Project;
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
which the Infrastructure is or will be located that expires no earlier than five (5)
years following Project completion;
i) 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 carry out
the Project;
j) it has the experience, financial health and ability to carry out this Project;
k) if the Recipient is a municipality, local board or a Crown agency, it has the
legislative authority to carry out the Project;
I) all information provided during the ISF application process remains true, correct
and complete in every respect except as set out to the contrary herein; and
m) notify OMAFRA of all other sources of funding for each Project contained in
Schedule "B" of this Agreement that may reduce the level of Financial Assistance
the Recipient would be eligible to receive under this Agreement.
14.2 Governance. The Recipient represents, warrants and covenants that, it has, and shall
maintain for the period during which this Agreement is in effect, by-laws or other legally
necessary instruments to:
a) establish the expected code of conduct and ethical responsibilities at all levels of
the Recipient's organization;
b) establish procedures to ensure the ongoing effective functioning of the Recipient;
c) establish decision-making mechanisms;
d) provide for the prudent and effective management of the Financial Assistance;
e) establish procedures to enable the successful completion of the Project;
f) establish procedures to enable the timely identification of risks to the completion
Page 19 of 44
ISF Contribution Agreement
of the Project and strategies to address the identified risks;
g) establish procedures to enable the preparation and delivery of all reports
required under this Agreement; and
h) responsible for other matters as the Recipient considers necessary to ensure
that the Recipient carries out its obligations under the Agreement.
14.3 Representations and Warranties True Condition Precedent for Payment. Upon
request, the Recipient shall provide OMAFRA with proof of the matters referred to in this
Section. 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 OMAFRA, 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 OMAFRA any representation or warranty made by the
Recipient in this Agreement or any certificate delivered to OMAFRA 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 OMAFRA;
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 OMAFRA a material adverse change occurs such that the
viability of the Recipient as a going concern is threatened in the opinion of the
OMAFRA, acting reasonably;
g) if in the opinion of the OMAFRA, the Recipient ceases to operate;
h) if the Recipient fails to begin the Project within sixty (60) days of the Project
construction start date, as per Schedule 8, or such period as OMAFRA may
allow" or, in the opinion of OMAFRA, the Recipient has failed to proceed
Page 20 of 44
ISF Contribution Agreement
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 OMAFRA are beyond the control of the Recipient;
i) if the Recipient has submitted false or misleading information to OMAFRA; or
j) the Recipient and/or any of its Consultants and/or any of their respective
advisors, partners, directors, officers, employees, agents, sub-contractors and
volunteers has breached the requirements of Section 12 of Schedule "A".
15.2 Waiver. OMAFRA may, in its sole and absolute discretion, at any time, waive any Event
of Default which may have occurred provided that no such waiver extends 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 and absolute
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
Business 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
immediately or may, in its sole and absolute discretion, Adjust the Financial
Assistance. The total amount of Financial Assistance paid to the Recipient to the
date of termination 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.
'~'~1:,'.
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
and absolute 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, aU 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
thirty (30) Business Days written notice to the Recipient. lIthe Government of Ontario
terminates this Agreement prior to its Expiration Date, the Government of Ontario,
subject to all of the Government of Ontario's rights under this Agreement, including,
Page 21 of 44
ISF Contribution Agreement
without limitation, its 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 Claims and Progress Statement and OMAFRA has sufficient funds appropriated by the
Legislative Assembly of Ontario. Such report must be received by OMAFRA within
ninety (90) Business Days 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 "P or to such other person, address, facsimile number,
telecopy number or em ail 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 three (3) Business Days
following the day on which it was mailed.
16.2 Representatives. The individuals identified pursuant to Schedule "P 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.
SECTION 17
MISCELLANEOUS
17.1 Terms Binding. The Recipient shall take all reasonable measures to ensure that its
officers, directors, partners, employees, agents, sub-contractors and Consultants 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 notless
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 of Schedule "A".
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.
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.
Page 22 of 44
ISF Contribution Agreement
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 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 and Failure to Substantially Complete Contract Within Timelines), Section
10 (Indemnity), Section 11 (Transfer and Operation of Infrastructure), Section 12
(Conflict of Interest and Confidentiality), Section 13 Recognition), Section 14
(Covenants, Representations and Warranties), Section 15 (Default, Enforcement and
Termination), and Section 17.11 (Interest) of Schedule "Aft; Schedule "Eft; Schedule"F"
(useful life of Project Infrastructure); and Schedule "Gft (the Recipient's obligation to
maintain a permanent plaque in cases where it is necessary to install a permanent
plaque).
17.9 No Assignment. The Recipient shall not assign any aspect of this Agreement. The
Government of Ontario may assign this Agreement on written notice to the Recipient.
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 Government of Ontario 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 Government of Ontario 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 Government of Canada or Government of Ontario.
The provision of Financial Assistance to the Recipient pursuant to this Agreement is for
the sale 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 Governments of Canada and/or Ontario. The
Page 23 of 44
ISF Contribution Agreement
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 Governments of
Canada and/or Ontario, to act as an agent of the Governments of Canada and/or
Ontario, or to bind the Governments of Canada and/or Ontario 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 the Lobbying 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 for non-ontario Government Recipients. The Recipient and the
Government of Ontario 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 Government of Canada.
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.
17.19 Entire Agreement. The Agreement constitutes the entire.Agreement between
Government of Ontario and the Recipient with respect to the subject matter contained in
the Agreement and supersedes all prior oral or written representations and/or
agreements.
- END OF GENERAL TERMS AND CONDmONS-
Page 24 of 44
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ISF Contribution Agreement
SCHEDULE "C"
ELIGIBLE AND INELIGIBLE COSTS
ELIGIBLE COSTS
C.1. Subject to Section C.2, Eligible Costs will be all direct costs that are in OMAFRA's
opinion properly and reasonably incurred and paid by the Recipient 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 constructing, rehabilitating or improving, in whole or in part, a
tangible capital asset, as defined and determined by OMAFRA;
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;
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 consulting with Aboriginal Group(s), including the translation of documents
into languages spoken by the interested Aboriginal Group(s);
g) the costs of developing and implementing innovative techniques for carrying out the
Project, as determined by OMAFRA;
h) Recipient audit and evaluation costs as specified in this Agreement, with the
exception of costs related to the retaining of an external auditor; and
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.
C.2. INELIGIBLE COSTS
The following costs are ineligible for Financial Assistance:
a) costs incurred prior to June 5, 2009;
b) costs incurred after the Project Completion Date;
Page 26 0144
ISF Contribution Agreement
c) land acquisition, leasing land, buildings, equipment and other facilities, real
estate fees and related costs;
d) financing charges, legal fees, and loan interest payments (including those
related to easements (e.g. surveys));
. ;~...
e) the value of any goods and services which are received through donations or in
kind;
f) employee wages and benefits, overhead costs as well as other direct or
indirect operating, maintenance and administrative costs incurred by the
Recipient for the Project, and more specifically costs relating to services
delivered directly by permanent employees of the Recipient;
g) meal, hospitality or incidental expenses of Consultants; and
h) provincial sales tax, the GST and, if and when implemented the Harmonized
Sales Tax for which the Recipient is eligible for a rebate, and any other costs
eligible for rebates.
Page 27 of 44
\ I
ISF Contribution Agreement
SCHEDULE "0"
PROJECT FINANCIAL ASSISTANCE
PROJECT
NUMBER*
916
TOTAL
ELIGIBLE
COSTS
$300.000
ONTARIO
MAXIMUM
FINANCIAL
ASSISTANCE
$100,000
FEDERAL
MAXIMUM
FINANCIAL
ASSISTANCE
$100,000
MAXIMUM
FINANCIAL
ASSISTANCE
$200,000
OMAFRA will hold back 10% of the Maximum Financial Assistance, the release of which shall
be contingent on acceptance of the Recipient's Anal Report detailing the progress and status of
the Project and substantiating that the Project has been Substantially Completed. 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.
Page 28 of 44
ISF Contribution Agreement
SCHEDULE "E"
GOVERNMENT OF CANADA REQUIREMENTS
OMAFRA and the Recipient agree to the following Government of Canada 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 Government of Canada. Should the Government of Ontario not receive the
funds it expects to receive in relation to the Project from the Government of Canada,
OMAFRA may, in its sole and absolute 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 the Government of 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 being funded by this Agreement;
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 wilnul 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 Government of Canada, its directors,
officers, employees and agents, for any incidental, indirect, special or consequential
damages, or any loss of use, revenue or profit, which the Government of Canada, its
directors, officers, employees and agents may incur, otherwise than by reason of their own
negligence or winul misconduct, as a resuh 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 the Government of Canada.
5. The Recipient acknowledges that the Government of Canada is or will be the owner of
certain distinguishing marks comprised of designs, trademarks and official marks in relation
to ISF (the "Federal Licensed Marks") and the Recipient is subject to the requirements of
Section 13 (Communication and Recognition) of this Agreement, with appropriate changes,
Page 29 of 44
ISF Contribution Agreement
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 the Government of
Canada incurred by virtue of this Agreement shall be subject to the Financial Administration
Act (Canada).
8. 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 Acf' and any Project-specific
environmental mitigation measures as communicated to the Recipient by the Government of
Canada.
9. The Recipient acknowledges and agrees that the Government of Canada 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.
Page 30 of 44
ISF Contribution Agreement
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", notice can be given at the following addresses:
(a) If to OMAFRA:
Ministry ot Agriculture, Food and Rural Affairs
1 Stone Road West, 4th Roor
Guelph, Ontario
N1G 4Y2
Phone: 1-888-466-2372
Fax: (519) 826-4336
E-Mail: bct.cc@ontario.ca
Attention: Dino Radocchia, Manager
(b) Ifto the Recipient:
Municipality of Kincardine
1475 Concession 5
R.R.#5
Kincardine, ON
N2Z 2X6
Attention: John deRosenroll, CAO
2. Other provisions:
3. Other Reporting Requirements:
4. Useful Life of Project Infrastructure: [i.e., no. of years]
Page 31 of 44
ISF Contribution Agreement
SCHEDULE"G"
COMMUNICATIONS REQUIREMENTS
Unless specified otherwise in Schedule "F", for the purposes of this Schedule "G" 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
Government of Canada, the Government of Ontario and the Recipient.
General Principles
The Recipient agrees to work with ISF 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 OMAFRA specifies otherwise.
All events, signs and plaques will follow these Communications Requirements and any other
requirements that may be specified by OMAFRA 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 32 of 44
ISF Contribution Agreement
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 ISF. 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 alllSF events.
The Table of Precedence for Canada, as established by Canadian Heritage
(http://www.pch.gc.caIpgmlceem-ccedlprtcVprecedence-eng.dm). or some other mutually
acceptable protocol should be respected.
Sians and Plaaues
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 ISF Style Guide.
,
Generally, the Recipient must ensure that the design, wording and specifications for signage are
in accordance with federal and provincial visual identity guidelines, available on the ISF website
at www.BCFontario.ca.
Temporary signs must be removed within 90 days of project completion.
Eliaible 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
. 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:
Page 33 of 44
ISF Contribution Agreement
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 34 of 44
\
ISF Contribution Agreement
SCHEDULE "H"
EXPENDITURE AND JOB CREATION REPORT
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EXpeNDITURE AND Jbll<:REAnON, REPOIrr
~tdprent Name:
File Number:
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Page 35 of 44
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SCHEDULE "J"
FINAL REPORT
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Page 37 of 44
-'
ISF Contribution Agreement
SCHEDULE "K"
SOLEMN DECLARATION OF SUBSTANTIAL COMPLETION
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Page 38 of 44
'.
ISF Contribution Agreement
SCHEDULE "L"
ABORIGINAL CONSULTATION PROTOCOL
PART L 1
1.0 Responsibilities of the Recipient
1.1 The Recipient shall immediately notify Ontario:
(i) of contact by any Aboriginal Groups regarding the Project; or
(ii) if any Aboriginal archaeological resources are discovered in the course of the
Project,
and in either case, Ontario may direct the Recipient to take such actions,
including without limitation suspension of the Project, as Ontario may require. The
Recipient shall comply with Ontario's direction.
1.2 The Recipient shall provide in any contracts with third parties for the Recipient's right
and ability to respond to direction from Ontario as Ontario may provide in accordance with
section 1.1.
PART L.2.
1.0 Purpose
The purpose of this Aboriginal Consultation Protocol is to set out the responsibilities of Ontario
and the Recipient in relation to consultation with Aboriginal Groups on the Project, and to
delegate procedural aspects of consultation from Ontario to the Recipient.
1.1 Definitions
For the purposes of this Schedule l.:
as. 35 Duty" means any duty Ontario may have to consult and, where appropriate,
accommodate Aboriginal Groups in relation to the Project flowing from Section 35 of the
Constitution Act, 1982.
2.0 Responsibilities of Ontario
2.1 Ontario is responsible for:
(i) determining the Aboriginal Groups to be consulted in relation to- the Project, if any,
and advising the Recipient of same;
(ii) the preliminary and ongoing assessment of the depth of consultation required with
the Aboriginal Groups;
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ISF Contribution Agreement
(iii) at its discretion, delegating procedural aspects of consultation to the Recipient
pursuant to this Agreement;
(iv) directing the Recipient to take such actions, including without limitation suspension
of the Project, as Ontario may require;
(v) satisfying itself, where it is necessary to do so, that the consultation process in
relation to the Project has been adequate and the Recipient is in compliance with
this Agreement; and
(vi) satisfying itself, where any Aboriginal or treaty rights and asserted rights of
Aboriginal Groups require accommodation, that Aboriginal Groups are appropriately
accommodated in relation to the Project.
3.0 Responsibilities of the Recipient
3.1 The Recipient hereby acknowledges that, for the purposes of any S. 35 Duty borne by
Ontario, the Recipient is Ontario's delegate and in this capacity is responsible for carrying out
the procedural aspects of consultation delegated to it by Ontario pursuant to this Agreement.
3.2 The Recipient is responsible for:
(i) giving notice to the Aboriginal Groups regarding the Project, if such notice has not
already been given by the Recipient or Ontario;
(ii) informing the Aboriginal Groups about the Project and providing to the Aboriginal
Groups a full description of the Project unless such description has been previously
provided to them;
(iii) following up with the Aboriginal Groups in an appropriate manner to ensure that
Aboriginal Groups are aware of the opportunity to express comments and concerns
about the Project, including any concerns regarding adverse impacts on hunting,
trapping, fishing, plant harvesting or on burial grounds or archaeological sites of
cultural significance to the Aboriginal Community;
(Iv) informing the Aboriginal Groups of the regulatory and approval processes that apply
to the Project of which the Recipient is aware after reasonable inquiry;
(v) maintaining the Aboriginal Groups on the Recipienfs maiHng lists of interested
parties for environmental assessment and other purposes and providing to the
Aboriginal Groups all notices and communications that the Recipient provides to
interested parties and any notice of completion;
(vi) making all reasonable efforts to build a positive relationship with the Aboriginal
Groups in relation to the Project;
(vii) providing the Aboriginal Groups with reasonable opportunities to meet with
appropriate representatives of the Recipient and meeting with the Aboriginal Groups
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ISF Contribution Agreement
to discuss the Project;
(viii) if appropriate, providing reasonable financial assistance to Aboriginal Groups to
permit effective participation in consultation processes for the Project;
(x) considering comments provided by the Aboriginal Groups regarding the potential
impacts of the Project on Aboriginal or treaty rights or asserted rights, including
adverse impacts on hunting, trapping, fishing, plant harvesting or on burial grounds
or archaeological sites of cultural.significance to an Aboriginal Community, or on
other interests, or any other concerns or issues regarding the Project;
(xi) answering any questions to the extent of the Recipient's ability and receiving
comments from the Aboriginal Groups, notifying Ontario of the nature of the
questions or comments received and maintaining a chart showing the issues raised
by the Aboriginal Groups and any responses the Recipient has provided;
(xii) where an Aboriginal Community asks questions regarding the Project directly of
Ontario, providing Ontario with the information reasonably necessary to answer the
inquiry, upon Ontario's request;
(xiii) subject to section 3.2 (xiv), where appropriate, discussing with the Aboriginal Groups
potential accommodation, including mitigation of potential impacts on Aboriginal or
treaty rights, asserted rights or associated interests regarding the Project and
reporting to Ontario any comments or questions from the Aboriginal Groups that
relate to potential accommodation or mitigation of potential impacts;
(xiv) consulting with Ontario during all discussions with Aboriginal Groups regarding
accommodation measures, if applicable, and presenting to Ontario for the purposes
of section 2.1 (v) hereof, the results of such discussions prior to implementing any
applicable accommodation measures; and
(xv) complying with Ontario's direction to take any actions, including without limitation
suspension of the Project, as Ontario may require.
3.3 The Recipient hereby acknowledges that, notwithstanding Section 3.1 above, Ontario, any
provincial ministry having an approval role in relation to the Project, or any responsible
regulatory body, official, or provincial decision-maker, may participate in the matters and
processes enumerated therein as they deem necessary.
3.4 The Recipient will carry out the following functions in relation to record keeping, information
sharing and reporting to Ontario:
(i) provide to Ontario, upon request, complete and accurate copies of all documents
provided to the Aboriginal Groups in relation to the Project;
(ii) keep reasonable business records of all its activities in relation to consultation and
provide Ontario with complete and accurate copies of such records upon request;
(iii) provide Ontario with timely notice of any Recipient mailings to, or Recipient
Page 41 of 44
ISF Contribution Agreement
meetings with, the representatives of any Aboriginal Community in relation to the
Project;
(iv) immediately notify Ontario of any contact by any Aboriginal Groups regarding the
Project and provide copies to Ontario of any documentation received from Aboriginal
Groups;
(v) advise Ontario in a timely manner of any potential adverse impact of the Project on
Aboriginal or treaty rights or asserted rights of which it becomes aware;
(vi) immediately notify Ontario if any Aboriginal archaeological
resources are discovered in the course of the Project;
(vii) provide Ontario with summary reports or briefings on all of its activities in relation to
consultation with Aboriginal.Groups, as may be requested by Ontario; and
(viii) if applicable, advise Ontario if the Recipient and an Aboriginal Community propose to
enter into an agreement directed at mitigating or compensating for any impacts of the
Project on Aboriginal or treaty rights or asserted rights.
3.5 The Recipient shall, upon request lend assistance to Ontario by filing records and
other appropriate evidence of the activities undertaken both by Ontario and by the Recipient in
consulting with Aboriginal Groups in relation to the Project, attending any regulatory or other
hearings, and making both written and oral submissions, as appropriate, regarding the
fulfillment of Aboriginal consultation responsibilities by Ontario and by the Recipient, to the
relevant regulatory or judicial decision-makers.
4.0 No Implicit Acknowledgement
4.1 Nothing in this Agreement shall be construed as an admission, acknowledgment,
agreement or concession by Ontario or the Recipient, that a S. 35 Duty applies in relation to
the Project, nor that any responsibility set out herein is, under the Constitution of Canada,
necessarily a mandatory aspect or requirement of any S. 35 Duty, nor that a particular aspect
of consultation referred to in Section 3.1 hereof is an aspect of the S. 35 Duty that could not
have lawfully been delegated to the Recipient had the Parties so agreed.
5.0 General
5.1 This Agreement shall be construed consistently with but does not substitute for any
requirements or procedures in relation. to Aboriginal consultation or the S. 35 Duty that may be
imposed by a ministry, board, agency or other regulatory decision-maker acting pursuant to
laws and regulations. Such decision-makers may have additional obligations or requirements.
Nonetheless, the. intent of Ontario is to. promote coordination among provincial ministries,
boards and agencies with roles in consulting with Aboriginal Groups so that the responsibilities
outlined in. this Agreement may be fulfilled efficiently and in a manner that avoids, to the extent
possible, duplication of effort by Aboriginal Groups, the Recipient, Ontario, and provincial
ministries, boards, agencies and other regulatory decision-makers.
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ISF Contribution Agreement
6.0 Notice and Contact
6.1 All notices to Ontario pertaining to this Schedule shall be in writing and shall be given by
facsimile or other means of electronic transmission or by hand or courier delivery. Any notice to
Ontario shall be addressed as follows:
Ministry of Agriculture, Food and Rural Affairs
1 Stone Road West, 4th Floor
Guelph, Ontario
N1G 4Y2
Phone: 1-888-466-2372
Fax: (519) 826-4336
Email: bcf.cc@ontario.ca
Attention: Dino Radocchia, Manager
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~ ,.,.
fSF Contribution Agreement
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