HomeMy WebLinkAbout11 042 COIP Funding Agreement By-law THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
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BY-LAW
NO. 2011 — 042
BEING A BY -LAW TO AUTHORIZE THE SIGNING OF AN AGREEMENT WITH
HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY
THE MINISTER STATE FOR THE FEDERAL ECONOMIC DEVELOPMENT
AGENCY FOR SOUTHERN ONTARIO
WHEREAS the Province of Ontario has enacted the Safe Drinking Water Act,
• 2002, O.Reg. 170/03, amended to O.Reg. 253/05, to protect human health
through the control and regulation of drinking -water systems and drinking -water
testing;
AND 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 Municipality of Kincardine applied for and received a
contribution from Canada through the Canada - Ontario Infrastructure Program
(COIP), to assist in funding the installation of an option 1 potable water system;
AND WHEREAS the increased cost of the potable water system has resulted in
unforeseen expenditures directly related to compliance with drinking water
regulations that has and will continue to have an adverse impact on the
• economic development of the Municipality;
AND WHEREAS the Municipality has applied for and been approved to receive a
grant through the Ontario Potable Water Program and the parties have wish to
enter into a Funding Agreement for the purpose of setting out the eligible criteria
for the payment of the grant and the procedure by which it is to be administered.
NOW THEREFORE the Council of The Corporation of the Municipality of
Kincardine ENACTS as follows:
1. That the Municipality of Kincardine enter into a Funding Agreement with Her
Majesty the Queen in Right of Canada as represented by the Minister of State
for the Federal Economic Development Agency for Southern Ontario for a
grant through the Ontario Potable Water Program as outlined in Schedule 'A'.
2. That the Mayor and Chief Administrative Officer be authorized and directed to
sign and execute, on behalf of The Corporation of the Municipality of
Kincardine, the Funding Agreement with Her Majesty the Queen in Right of
• Canada as represented by the Minister of State for the Federal Economic
Development Agency for Southern Ontario, attached hereto as Schedule "A"
and to affix the corporate seal.
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COIP Funding Agreement By -law
By -law No. 2011 - 042
• 3. This By -law shall come into full force and effect upon receipt by the
Municipality of Kincardine of a duly signed copy of the Funding Agreement
with the Minister of State for the Federal Economic Development Agency for
Southern Ontario.
4. This By -law may be cited as the "COIP Funding Agreement By -law ".
READ a FIRST and SECOND TIME this 16 day of March, 2011.
Dry iyuo atli2
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Ma or Clerk d
READ a THIRD TIME and FINALLY PASSED thisl6 day of March, 2011.
IA Mr "` �owv a.a QQ
• ay or Clerk 0
•
•
•
ONTARIO POTABLE WATER PROGRAM (OPWP)
THIS FUNDING AGREEMENT made as of the I (p day of Mort h , 2011.
BETWEEN:
HER MAJESTY IN RIGHT OF CANADA ( "Canada ")
represented by the Minister of State for the Federal Economic Development Agency for
Southern Ontario
(the "Minister")
— and —
Municipality of Kincardine
(the "Municipality ")
WHEREAS:
1. The Municipality applied for and received a contribution from Canada through the
Canada - Ontario Infrastructure Program (COIP), to assist in funding the
installation of an option 1 potable water system (the "System "); and
2. As a result of the Walkerton, Ontario water contamination situation of 2000, the
Ontario govemment brought into effect more stringent regulations to ensure
drinking water safety which significantly increased the cost of the System; and
3. The increased cost of the System has resulted in unforeseen expenditures
directly related to compliance with drinking water regulations that has and will
continue to have an adverse impact on the economic development of the
Municipality; and
4. Canada wishes to promote regional economic development in specific small and
rural Ontario municipalities by addressing funding pressures incurred in the
development of their COIP Systems to meet stringent Ontario drinking water
regulations and for this reason has agreed to provide financial assistance by way
of a grant through the Ontario Potable Water Program (the "Project "); and
5. The Municipality has applied for and been approved to receive a grant through
the Project and the parties have entered into this Funding Agreement for the
purpose of setting out the eligibility criteria for the payment of the Grant to the
Municipality and the procedure by which the Grant is to be administered.
NOW THEREFORE in consideration of their respective obligations contained herein, the
Parties covenant and agree as follows:
1. Recitals
The above recitals constitute part of this document and are true and correct.
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2. Interpretation
2.1 Definitions
In addition to the terms defined in the recitals and elsewhere in this
Agreement, a capitalized term has the meaning given to it in this Section
unless the context indicates otherwise.
"Agreement" means this funding agreement and includes all schedules and
any amendments hereto.
"Fiscal Year" means the period beginning April 1 of a year and ending
March 31 of the following year.
"OMAFRA" means the Ontario Ministry of Agriculture, Food and Rural
Affairs.
"Parties" means Canada or the Minister and the Municipality.
"Party" means Canada, the Minister or the Municipality.
2.2 Entire Agreement
This Agreement constitutes the entire agreement between the Parties
pertaining to the matters contemplated hereby and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the Parties
2.3 Governing Law
This Agreement shall be govemed by, interpreted and enforced in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
2.4 Term
2.4.1 This Agreement becomes effective as of the date of execution by both
Parties and shall continue in force until the earlier of:
(a) March 31, 2011; or
(b) 30 days after the Municipality receives payment in full of the Grant.
Unless extended or terminated by mutual consent of the Parties. All
payments subsequent to March 31, 2011 must be made within the terms of
the Treasury Board Policy on Payables at Year End.
2.4.2 Notwithstanding Section 2.4.1, the Parties' rights and obligations under
Sections 4.3 (Eligibility Requirements), 4.5 (Other Government
Assistance), 6 (Evaluation), 7 (Monitoring), 9 (Recovery), 10 (Remedies)
and 11.13 (Indemnification) and any other Section which is required to
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give effect to the termination or to its consequences will survive the expiry
or early termination of this Agreement.
3. Results
3.1 Expected Results of the Project
The expected outcome of the Project is to support the capacity of the
Municipality to respond to economic development opportunities and
challenges which contributes to the strategic outcome of Industry Canada of
competitive industry and sustainable communities.
4. The Grant
4.1 The Minister acknowledges that the Municipality is eligible for a grant in the
amount of $497,810 (herein called the "Grant').
4.2 In no event shall the amount of the Grant exceed the actual total increased
cost of the System as a result of the stringent regulations.
4.3 Eligibility Requirements
To maintain its eligibility to receive payment of any part of the Grant, the
Municipality will be an Ontario municipality that has entered into a Canada -
Ontario Infrastructure Program (COIP) contribution agreement for an option 1
potable water project, and will:
4.3.1 Have incurred increased costs for the System as a result of having to
comply with Ontario drinking water regulations;
4.3.2 Have submitted the COIP project final claim and final report and all
required documents related to the System confirming completion of the
System and identifying the additional costs incurred by the Municipality to
OMAFRA;
4.3.3 Have had these additional costs re- nominated by OMAFRA to the
Minister for consideration of increased funding for the System;
4.3.4 Comply with all provisions of this Agreement; and
4.3.5 disburse the Grant in a manner that will further the economic
development of the Municipality;
4.4 Appropriation and Funding Levels
4.4.1 A payment due by the Minister hereunder is conditional on a legislated
appropriation for the Fiscal Year in which the payment is due;
4.4.2 The amount of a payment due by the Minister hereunder may be reduced
in the event that the amount of the appropriation is reduced by
Parliament.
4.5 Other Government Assistance
The determination of the amount of the Grant will take into consideration the
total government assistance (federal, provincial and municipal) towards the
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total cost of the System. In no event will the total government assistance
exceed 100% of the actual System costs.
The Municipality shall advise the Minister of any other government assistance
that it has received or requested for the System costs and it shall notify the
Minister immediately should the total assistance it receives from government
(federal, provincial or municipal) organizations for the purposes of the System
exceed the total cost of the System. The Minister may recover from the
Municipality its proportionate share of such excess or reduce subsequent
payments, if applicable. The Municipality acknowledges that failure to
disclose this information to the Minister shall constitute an event of default
under this Agreement pursuant to which the Minister may exercise its
remedies contained in Section 10.
5. Payment of the Grant
The amount of the Grant has been determined after a review by the Minister
of the COIP project final claim, the COIP project final report, the cash flow
requirements of the Municipality and any other report or information required
by the Minister. Payment of the Grant will be made within ninety (90) days of
receipt from the Municipality of the executed Funding Agreement in
accordance with Appendix B instalment Payments of Grants and Advance
Payments of Contributions of the Treasury Board Policy on Transfer
Payments.
6. Evaluation
The Minister may, after consultation with the Municipality, choose to conduct
an evaluation, by an evaluator(s) of his choosing, of the Agreement as an
instrument of policy of the Government of Canada, at his own cost. The
Municipality is encouraged to cooperate and provide access to the
appropriate records to conduct such an evaluation. The Minister will share a
copy of the resulting report with the Municipality and agrees to discuss any
concerns raised in the evaluation with the Municipality.
7. Monitoring
The Municipality, when so requested by the Minister, is encouraged to
provide such data, schedules, plans and reports in sufficient detail which shall
enable the Minister to:
(a) Assess the use of the Grant towards furthering the economic development of
the Municipality;
(b) Assess the compliance of documentation required under this Agreement; and
(c) Report on the results of the grants provided by the Project.
8. Environment
The Parties acknowledge that the COIP project was subjected to
environmental screening in accordance with Section 18(1) of the Canadian
Environmental Assessment Act (GEAR). The Municipality covenants that all
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necessary environmental authorizations and/or letters of advice are in place
and that any environmental mitigation measures specified through such
authorizations or letters of advice have been adhered to.
9. Recovery
The Minister may recover payment of all or part of the Grant made where:
(a) The Municipality is not entitled to the Grant; or
(b) The Municipality fails to maintain its eligibility; or
(c) The amount of the Grant exceeds the amount to which the Municipality is
entitled.
10. Remedies
In the event that the Municipality fails to comply with a material term or
condition of this Agreement or fails to rectify or commence to rectify (to the
satisfaction of the Minister) such non - compliance within the period of time
specified by the Minister then, in addition to any other remedies available at
law, the Minister may exercise the following remedies:
(a) Suspend any obligation of the Minister to make payment of all or part of the
Grant to the Municipality, including any obligation to pay any amount owing
prior to the date of such suspension;
(b) Terminate any obligation of the Minister to make payment of all or part of the
Grant, including any obligation to pay any amount owing prior to the date of
such termination;
(c) Require the Municipality to repay all or part of the Grant previously paid to it;
(d) Require the Municipality to pay any amounts due under this Agreement
together with interest from the date of demand in accordance with the Interest
and Administrative Charges Regulations;
(e) Require that the Municipality rectify such default within a specified period of
time and inform the Minister that it has done so; and
(f) Terminate this Agreement.
11. Miscellaneous
11.1 Binding Obligations
Each Party declares to the other that the signing and execution of this
Agreement was duly and validly authorized, and that each has incurred a
legal and valid obligation in accordance with the terms and conditions of the
Agreement.
11.2 Debts Due to The Minister
Any amount owed to the Minister under this Agreement will constitute a debt
due to Canada, which the Municipality will reimburse forthwith, on demand, to
Canada.
11.3 No Benefit
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No member of the House of Commons or of the Senate of Canada will be
admitted to any share or part of any Contract made pursuant to this
Agreement or to any benefit arising therefrom.
11.4 No Agency
It is understood, recognized and agreed that no provision of this Agreement
and no action by the Parties will establish or be deemed to establish a
partnership, joint venture, principal -agent relationship, or employer - employee
relationship in any way or for any purpose whatsoever between Canada and
the Municipality or between Canada, the Municipality and a third party.
11.5 No Authority to Represent
Nothing in this Agreement is to be construed as authorizing one Party to
contract for or to incur any obligation on behalf of the other or to act as agent
for the other.
11.6 Counterpart Signature
This Agreement may be signed in counterpart, and the signed copies will,
when attached, constitute an original Agreement.
11.7 Values and Ethics Code
No person governed by the post - employment, ethics and conflict of interest
guidelines of Canada will derive a direct benefit from this Agreement unless
that person complies with the applicable provisions.
11.8 Severability
If for any reason a provision of this Agreement that is not a fundamental term
is found to be or becomes invalid or unenforceable, in whole or in part, it will
be deemed to be severable and will be deleted from this Agreement, but all
the other terms and conditions of this Agreement will continue to be valid and
enforceable.
11.9 Waiver
A Party may waive any right under this Agreement only in writing; and any
tolerance or indulgence demonstrated by that Party will not constitute waiver
of such right. Unless a waiver is executed in writing, that Party will be entitled
to seek any remedy that it may have under this Agreement or under the law.
11.10 Lobbyists and Agent Fees
The Municipality warrants that:
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(a) It has not, nor has any person on its behalf, paid or provided or agreed to pay
or provide, to any person, directly or indirectly, a commission, contingency
fee or any other consideration (whether monetary or otherwise) that is
dependant upon the execution of the Agreement or the person arranging a
meeting with any Public Office Holder as defined in the Lobbyists Registration
Act (the "Act");
(b) It will not, during the term of this Agreement, pay or provide or agree to pay or
provide to any person, directly or indirectly, a commission, contingency fee or
any other consideration (whether monetary or otherwise) that is dependant
upon the person arranging a meeting with any Public Office Holder;
(c) Any person who, for consideration, directly or indirectly, communicated with
or arranged a meeting with any Public Office Holder, in respect of any aspect
of this Agreement, prior to the execution of the Agreement, was in
compliance with all requirements of the Act;
(d) Any person who, for consideration, directly or indirectly, during the term of
this Agreement and in respect of any aspect of this Agreement,
communicates with or arranges a meeting with any Public Office Holder will
be in compliance with all requirements of the Act; and
(e) At all relevant time the Municipality has been, is and will remain in
compliance with the Act.
11.11 Notice
Any notice, information or document provided for under this Agreement will
be effectively given if it is in writing and delivered or sent by letter, postage or
other charges prepaid, or by facsimile or email. Any notice that is delivered
will have been received on delivery; and any notice mailed will be deemed to
have been received eight (8) calendar days after being mailed.
For the Municipality:
Name:
Title:
Municipality of Kincardine
1475 Concession 5,
Kincardine, Ontario N2Z 2X6
For the Minister:
Director General, Infrastructure
Federal Economic Development Agency for Southern Ontario
151 Yonge Street, 3 Floor,
Toronto, Ontario M5C 2W7
Each Party may change the address that it has stipulated by notifying in
writing the other party of the new address.
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11.12 Amendments
Any amendments to this Agreement shall be by the written mutual consent of
the Parties.
11.13 Indemnification
The Municipality shall indemnify and hold harmless Canada, its officers,
servants, employees or agents, from and against all claims and demands,
loss, damages, costs, expenses, actions, suits or other proceedings by
whomsoever made, sustained, brought, prosecuted, threatened to be brought
or prosecuted in any manner, based upon, occasioned by any injury to
persons, damage to or loss or destruction of property, economic loss or
infringement of rights caused by or arising directly or indirectly from:
(a) The Project or the System;
(b) The performance of this Agreement or the breach of any term or condition of
this Agreement by the Municipality, its officers, employees and agents, or by
a third party, its officers, employees or agents;
(c) Any omission or other wilful or negligent act of the Municipality, 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.
11.14 Communications
11.14.1 The Minister and the Municipality agree to undertake joint
communications activities and collaborate on products to ensure open,
transparent, proactive and effective communications with Canadians.
This transparency and accountability will be achieved through
appropriate and consistent public communications activities that
recognize the contributions of all participating parties under this
Agreement.
11.14.2 The Parties can carry out their own communications activities relating to
the Project. However, such communications will nonetheless recognize
and emphasize the source of the funds and the contributions of all
parties.
11.14.3 The Parties agree that all communications products produced pursuant
to this Agreement shall comply with the Federal Identity Program (FIP)
and relevant provincial requirements. Branding standards and graphic
guidelines will be developed by the Minister to guide development of
communications products and activities for the Project.
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11.15 Headings
The headings used in this Agreement are inserted for convenience of
reference only and shall not affect its interpretation.
11.16 Assignment
The Municipality will not transfer or assign its rights or obligations under this
Agreement without the prior written consent of the Minister. Any attempt by
the Municipality to assign any of the rights, duties or obligations of this
Agreement without the Minister's express written consent is void.
IN WITNESS WHEREOF the parties hereto have executed this Funding Agreement
through their duly authorized representatives.
HER MAJESTY IN RIGHT OF CANADA
As represented by the Minister of State for the Federal Economic Development Agency
for Southem Ontario
Per: l�v �n�t Date: LL Q.3L 2011
Name: Natasha Kay Brenders
Title: Director General, Infrastructure
Federal Economic Development Agency for Southern Ontario
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