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HomeMy WebLinkAbout11 154 OSTAR Mandatory Engineering and Study of Existing Water System and Treatment Process Agreement By-law THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE lar c *fan ir- r voTriv 'Tr Otily Of le 3 BY -LAW NO. 2011 —154 BEING A BY -LAW TO ENTER INTO AN AGREEMENT FOR MANDATORY ENGINEERING STUDY OF EXISTING WATER SYSTEM AND TREATMENT PROCESS UNDER THE ONTARIO SMALL TOWN AND RURAL DEVELOPMENT ( OSTAR) INFRASTRUCTURE INITIATIVE 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 Council and the Ministry of Agriculture, Food and Rural Affairs entered into a previous Agreement for the purpose of assisting the Municipality to comply with the requirements of the Ontario Water Resources Act, R.S.O. 1990, c.0.40 and the Drinking Water Systems Regulation made thereunder; AND WHEREAS the previous agreement lapsed and therefore needs to be "revived" in order to allow the Ministry to make final payments to the Municipality as well as release any holdback currently being held; AND WHEREAS the Parties agree that the best way to address this issue is to have this Agreement come into effect the second before the previous Agreement expired on December 31, 2001; • NOW THEREFORE the Council of The Corporation of the Municipality of Kincardine ENACTS as follows: 1. That the Municipality of Kincardine enter into an Agreement with Her Majesty the Queen in Right of Ontario as represented by the Minister of Agriculture, Food and Rural Affairs. 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 agreement with Her Majesty the Queen in Right of Ontario as represented by the Minister of Agriculture, Food and Rural Affairs, attached hereto as Schedule "A" and to affix the corporate seal. 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 agreement with the Minister of Agriculture, Food and Rural Affairs. • 4. This By -law may be cited as the "OSTAR Mandatory Engineering and Study of Existing Water System and Treatment Process Agreement By -law ". .../2 Page 2 OSTAR Mandatory Engineering and Study of Existing Water System and Treatment Process Agreement By -law By -law No. 2011 - 154 • READ a FIRST and SECOND TIME this 21 day of December, 2011. • .M. yo 9 Cler READ a THIRD TIME and FINALLY PASSED this 21 day of December, 2011. • a A t yor !- • Cle k • • • 4 FILE REFERENCE: 6292 ONTARIO SMALL TOWN AND RURAL DEVELOPMENT (OSTARI INFRASTRUCTURE INITIATIVE AGREEMENT FOR: MANDATORY ENGINEERING STUDY OF EXISTING .WATER SYSTEM AND TREATMENT PROCESS BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF AGRICULTURE, FOOD AND RURAL AFFAIRS (the "Ministry) —and — THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the "Recipient") WHEREAS the purpose of the SuperBuild OSTAR Infrastructure Initiative (the "OSTAR Initiative ") was to improve the quality of infrastructure in Ontario's small towns, rural communities and small cities; AND WHEREAS the Recipient has chosen to apply for funding to comply with the Drinking Water Protection Regulation or Orders from the Ministry of the Environment; AND WHEREAS the Ontario Regulation 459/00 — Drinking Water Protection — Larger Water Works, as amended, made pursuant to the Ontario Water Resources Act, R.S.O. 1990, c. O. 40, as amended, requires a mandatory municipal engineering study of the existing water supply system and treatment process by a professional engineer, as defined in the Professional Engineers Act, R.S.O. 1990, c. P. 28, as amended prior to any water or sewage works being undertaken; AND WHEREAS details of the study (the "Study") are more particularly described in and the amount of assistance is based on the cost of the Study, population and relevant factors, as deemed by the Ministry and the details of the Eligible Costs, Payment Schedules, Description of Study, Maximum Financial Assistance and Projected Cash Flows for the Study are outlined in Schedules I, II and III of the P- Agreement; Page 1 of 21 AND WHEREAS the Parties entered into a P- Agreement; AND WHEREAS the Parties amended the P- Agreement; AND WHEREAS the P- Agreement, through no fault of the Parties, lapsed and therefore needs to be "revived" in order to allow the Ministry to make final payment(s) to the Recipient as well as release any holdback currently being held; AND WHEREAS the Parties agree that the best way to address this issue is to have this Agreement come into effect the second before the P- Agreement expired on December 31, 2001; AND WHEREAS the Parties agree that any amendments to the P- Agreement made after December 31, 2001 shall be deemed to be amendments to this Agreement; AND WHEREAS this Agreement defines the terms and conditions of the financial contribution for the Study in which the Parties agree to abide by; NOW THEREFORE in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties covenant and agree as follows: SECTION 1 DEFINITIONS AND INTERPRETATION 1.1 The following terms shall have the meanings ascribed to them below, including the recitals above and in any Schedules hereto, unless there is something in the subject matter or context inconsistent therewith: "Act" means Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.F.31. "Agreement" means this agreement, including all of the Schedules hereto, and all amendments made hereto in accordance with the provisions hereof. "Business Day" means any day on which chartered banks generally are open for business in the Province of Ontario. "Eligible Costs" means approved project costs in Schedule I deemed eligible under the Initiative Agreement which were incurred no earlier than August 10, 2000. Page 2 of 21 "Effective Date" means the second before the P- Agreement expired on December 31, 2001. "End of Financial Assistance Date" means March 31, 2012. "Expiration Date" means March 31, 2012. "Generally Accepted Accounting Principles" means Canadian generally accepted accounting principles as adopted by the Canadian Institute of Chartered Accountants, or any successor institute, applicable as at the date on which such calculation is made or required to be made in accordance with generally accepted accounting principles. "Independent Project Manager' means any consultant, engineer, contractor or other service provider, as the case may be, retained by the Recipient to undertake any part of the work related to the Study. "P - Agreement" means the agreement entered into between the Parties on April 30, 2001. "Parties" means the Ministry and the Recipient collectively. "Party" means the Ministry or the Recipient, depending on the context. 1.2 The words "herein ", "hereof" and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, section, paragraph or other subdivision of this Agreement. 1.3 Words importing the masculine gender include the feminine or neuter gender and words in the singular include the plural, and vice versa. SECTION 2 TERM OF AGREEMENT 2.1 This Agreement shall be retroactively effective to the second before the P- Agreement expired on December 31, 2001. 2.2 Schedules II and III of the P- Agreement are referentially incorporated into this Agreement as they read immediately before the Effective Date of this Agreement. For greater certainty, Schedule III of the P- Agreement is not referentially incorporated into this Agreement. Page 3 of 21 2.3. Subject to any extension or termination of this Agreement or survival of any of the provisions of this Agreement pursuant to the provisions contained herein, this Agreement shall be in effect from the Effective Date, up to and including the Expiration Date. 2.4 Notwithstanding anything in this Agreement, including any Schedules appended hereto, and regardless of the Study's state of completion, the Ministry shall not be obligated to provide financial assistance under this Agreement after the End of Financial Assistance Date. SECTION 3 STUDY AWARD AND COMPLETION 3.1 The Recipient shall be fully responsible for completing the Study including retaining an Independent Project Manager to carry out the Study. The Recipient shall make any other arrangements as necessary to properly carry out the Study. The Recipient shall be at all times in compliance with all applicable Canadian, provincial (including but not limited to the Environmental Protection Act (Ontario) and the Ontario Water Resources Act) and local laws, rules, orders and regulations goveming any hazardous substance, gas or liquid or any other substance, gas or liquid which is prohibited, controlled or regulated under such laws, rules, orders or regulations and shall include compliance with environmental protection legislation as a term of all agreements with independent consultants or engineers. 3.2 All portions of the Study including engineering and professional consulting, technical services, leasing contracts for specialized equipment where the value of the contract for work or services exceeds $25,000 will be eligible for funding assistance only if an objective competitive process, was used to acquire such services. Upon request, the Recipient shall provide sufficient documentation, in the opinion of the Ministry, to establish that this requirement has been met. Where technical or other services are provided by an Independent Project Manager, this requirement will be met if an objective competitive process was used to acquire the services of the Independent Project Manager. 3.3 The Recipient agrees to enter into an agreement with an Independent Project Manager in connection with the Study within three months of signing this Agreement. Where this does not occur, the Ministry may withhold payment or terminate its obligations under this Agreement in accordance with Section 10 of this Agreement. 3.4 The final version of the Study and consolidated Certificate of Approval in duplicate shall be submitted to the Ministry by December 31, 2001, or such longer period as is specified in writing by the Ministry, in a format acceptable to the Ministry. Upon request, the Recipient shall provide such information, permit such inspection of Page 4 of 21 existing water works by the Ministry as necessary to confirm the results of the Study and assist Ministry officials in confirming the results of the Study. 3.5 The Recipient and, through the Recipient, its Independent Project Manager represents and warrants that it has investigated and satisfied itself that, to the best of its knowledge, any materials or documents produced under this Agreement or any part thereof do not infringe any patent or copyright or any other intellectual property rights including trade secrets. 3.6 The Recipient shall indemnify and hold harmless the Ministry, its employees and agents from and against any and all actions; claims, lawsuits, proceedings, demands, liabilities, losses, damages, costs and expenses (including, without limitation, reasonable legal fees) of whatever kind and nature, relating to or arising out of any such infringement or inducement of infringement of any such third party intellectual property rights. 3.7 The Recipient shall ensure that copyright in and all information and material of any kind whatsoever acquired or prepared by or for the Recipient under this Agreement, shall, both during and following the completion of the Agreement, be the sole property of the Ministry. 3.8 The Recipient will obtain assignments to the Ministry of all intellectual property rights and waivers of moral rights in any of the material produced by the Recipient, its employees, agents or Independent Project Manager. The Recipient acknowledges that the materials will be and will remain the sole property of the Ministry and the Recipient will give the materials to the Ministry upon completion of the Study or any termination or cancellation of the Study under this Agreement. 3.9 The Recipient shall ensure that its Independent Project Manager agrees to the provisions of Sections 3.6 to 3.8 and 7.1 to 7.4, in writing. 3.10 The Recipient shall submit the final claims and the consolidated certificate of approval with the required documentation for approval, cost reviews, audits and settlement within two months of approval and acceptance of the Study by the Ministry of the Environment, or such longer period as is specified in writing by the Ministry. SECTION 4 FINANCIAL ASSISTANCE 4.1 The financial assistance is intended for and shall be used only for the Study described in Schedule II. The maximum amount of financial assistance for the Study under this Agreement is set out in Schedule III. Page 5 of 21 4.2 The financial assistance is based on eligible expenditures as determined according to Schedule I. The Recipient acknowledges and agrees that the amount of financial assistance under this Agreement for the Study shall be determined by the Ministry, in its sole discretion. The Recipient acknowledges and agrees that financial assistance under this Agreement is contingent on completion of the Study to the satisfaction of the Ministry. 4.3 The Ministry will, in its sole discretion, adjust the amount of the financial assistance on the Study or any other project(s) of the Recipient under the OSTAR Initiative, or any other provincial program(s) (either current or future) and may require repayment for some or all of the financial assistance of the Study in an amount to be determined by the Ministry and within the period specified by the Ministry where: (a) The Ministry has noted the Recipient in writing of any steps required to complete the Study to the Ministry's satisfaction and the Study has not been completed to the satisfaction of the Ministry within the period specified in the notice; (b) Actual costs are lower or appear likely to be lower than the total eligible expenditures identified in Schedule I, or where additional funding is secured from other sources (govemment or private); (c) The Recipient does not intend to carry out the Study in whole or in part as specified in Schedule II and has provided written notification to the Ministry that it does not intend to carry out the Study; and (d) New information, errors, omissions or other circumstances affecting the determination of the amount of financial assistance under this Agreement come to light. 4.4 The Recipient acknowledges and agrees that financial assistance under this Agreement shall not be construed as a guarantee or assurance that financial assistance will be provided by the Ministry in relation to the construction and implementation of related works. 4.5 It is a condition precedent to any payment under this Agreement that the representations and warranties under this Agreement are true at the time of payment and that the Recipient is not in default of compliance with any terms of this Agreement. Where this is not the case, the Ministry may, in its sole discretion, adjust the amount of financial assistance for the Study or any other project(s) of the Recipient under the OSTAR Initiative, or any other provincial program(s) (either current or future), to take this into account. In addition, the Ministry may require repayment for some or all of the financial assistance of the Study in an amount to be Page 6 of 21 be determined by the Ministry and within the period specified by the Ministry. 4.6 The Ministry reserves the right to demand interest on any repayment of financial assistance (whether total or partial) owing by the Recipient under the terms of this Agreement at the then - current interest rate charged by the Province of Ontario on accounts receivable. The Recipient shall pay the amount of interest owing upon receipt of a written demand and within the period specified by the Ministry and the Ministry shall apply any partial repayment first to interest charges and other costs and then to principal. 4.7 Sections 4.3, 4.4, 4.5 and 4.6 and section 4.7 hereof shall survive the expiration or early termination of this Agreement. SECTION 5 PAYMENT PROCEDURES 5.1 Payments will be made in accordance with the relevant terms of this Agreement. . Payment of financial assistance is contingent on receipt and approval by the Ministry of paid invoices and a detailed statement of costs for the eligible expenses under this Agreement, including Schedule I. Payment of financial assistance on any invoice is subject to the approval of the Ministry. 5.2 The Recipient shall submit the detailed statement of costs claimed and corresponding invoices, signed by the Chief Financial Officer or other authorized official of the Recipient. The Ministry shall disburse the financial assistance to the Recipient at its discretion or on the basis provided for by the Ministry in writing. The costs claimed must be reasonable and supported by documentation acceptable to the Ministry. 5.3 The Ministry may, in its sole discretion, withhold payment where the Recipient is in default of compliance with any provisions of this Agreement or any applicable legislation. 5.4 Notwithstanding Section 4.1 of this Agreement, the Ministry will hold back an amount (10 %), in its sole discretion, the release of which shall be contingent on the completion of the Study and upon receipt and approval by the Ministry of the final claim for the Study as required, all in accordance with Section 3.10 of this Agreement. Upon release, the amount of the hold back is subject to an adjustment equal to the difference between the amount of the financial assistance as defined in Sections 4.1 to 4.7 (and any other relevant sections) of this Agreement and the total payments made to date. The Ministry is not obligated to pay interest on the hold back or any other payments under this Agreement. Page 7of21 5.5 If, in the opinion of the Ministry, the Legislative Assembly of Ontario does not provide sufficient funds to continue the financial assistance for any fiscal year during which this Agreement is in effect, the Ministry may terminate this Agreement in accordance with the terms specified in Section 10.5 of this Agreement. SECTION 6 OVERPAYMENT 6.1 Funds advanced to the Recipient prior to settlement in accordance with Section 3.10 of this Agreement shall not be construed as a final determination of financial assistance applicable to the Study. Upon conducting a cost review or audit of the Study, the Ministry will determine the amount of financial assistance on the Study. Recipient agrees to repay to the Ministry, upon receipt of a written demand and within the period specified by the Ministry, that portion of the total of the funds advanced that exceeds the financial assistance applicable to the Study, as determined by the Ministry, as well as any funds used for a purpose other than that stated in the terms of this Agreement, as determined by the Ministry. Any overpayment of financial assistance shall bear interest from the date of overpayment at the then current interest rate charged by the Province of Ontario on accounts receivable. 6.2 The Ministry may deduct any overpayment of financial assistance pursuant to Section 6.1 of this Agreement from financial assistance payable on any project(s) of the Recipient under the OSTAR Initiative, or other provincial program(s) (either current or future). Any overpayment made on any other project(s) of the Recipient under the OSTAR Initiative or other provincial program(s) (either current or future) may in tum be deducted from financial assistance owing on the Study. 6.3 Sections 6.1 and 6.2 and Section 6.3 hereof shall survive the expiration or early termination of this Agreement. SECTION 7 INFORMATION REQUIREMENTS 7.1 The Recipient, and through the . Recipient, its Independent Project Manager performing work under this Agreement shall maintain and keep all records, accounts and documentation relating to the Study for a period of at least 3 years after the final settlement of accounts referred to in Section 3.10. Upon request, the Recipient shall submit all records and documentation relating to the Study including, but not limited to, background information and data used in the development of the Study, invoices, proposals (tenders where applicable), correspondence, memoranda, • Page 8 of 21 agreements/contracts and amendments thereto. All accounting records and documentation shall be maintained in accordance with Generally Accepted Accounting Principles. 7.2 Upon request, the Recipient shall submit the information referred to in Section 7.1 in a form satisfactory to the Ministry and the Recipient shall follow such administrative procedures, data specifications (such as format, media) and database requirements as are specified from time to time by the Ministry. The Recipient agrees to allow the Ministry and its authorized representatives and agents, including the Provincial Auditor's Office, access to the Recipient's offices during normal business hours for purpose of accessing, extracting and copying, at the Recipient's expense, any information including electronic data related to the Study and to provide any necessary assistance to the Ministry for those purposes. 7.3 If, in the opinion of the Ministry, any of the information requirements of Sections 7.1 and 7.2 of this Agreement are not met, the Ministry may, in its sole discretion, require the information as a condition precedent to any payment in relation to the Study or any other project(s) of the Recipient under the OSTAR Initiative, or any other provincial program(s) (either current or future). In addition, the Ministry may require repayment for some or all of the financial assistance for the Study in an amount to be determined by the Ministry and within the period specified by the Ministry. 7.4 Sections 7.1, 7.2 and 7.3 and Section 7.4 hereof shall survive the expiration or early termination of this Agreement. SECTION 8 INSURANCE 8.1 The Recipient, and through the Recipient, the Independent Project Manager performing work under this Agreement, shall put in effect and maintain in full force and effect during the Term of this Agreement, (a) All the necessary performance and other bonds (as a minimum, 100% performance bonds and 100% labour and material payment bonds are required to be in place); and (b) All the necessary insurance policy coverage for the Study, including, at a minimum, the following: (i) Comprehensive General Liability policies of insurance for the Study that will protect the Recipient for all sums the Recipient may become obligated to pay as damages because of property Page 9of21 damage, bodily injury (including death) and personal injury which are caused in the course of carrying out the Study, to an inclusive limit not less than ten million ($10,000,000.00) dollars (including pollution coverage) per occurrence; and (ii) Automobile insurance (owned and non -owned or hired units) to an inclusive limit not Tess than one million ($1,000,000.00) dollars per occurrence. 8.2 During the term of this Agreement, the Recipient shall have each policy of insurance referred to above in Section 8.1 include, at a minimum, endorsements for Cross- Liability, Contractual Liability, Independent Contractors and naming the Ministry, its officers and servants, as additional insureds with identical coverage as if a separate policy had been issued to the Recipient and Ministry. 8.3 The policies referred to in Section 8.1 shall contain a clause stating that the policy will not be cancelled, terminated or significantly modified unless a prior notice of at least thirty (30) days has been given to each insured. 8.4 Upon request, the Recipient shall provide the Ministry with valid Certificates of Insurance (and a renewal replacement as may be necessary) referencing this Agreement, confirming the requirements in Sections 8.1, 8.2 and 8.3, and stating any pertinent exclusions, as applicable, contained by the policies. SECTION 9 INDEMNITY 9.1 In no event shall the Ministry be liable for any bodily injury, death or property damage to the Recipient, its employees, agents or Independent Project Manager or for any claim, demand or action by any third party against the Recipient, its employees, agents or Independent Project Manager, arising out of or in any way related to the Agreement or the Study. 9.2 In no event shall the Ministry be liable for any incidental, indirect, special or consequential damages, or any loss of use, revenue or profit to the Recipient, its employees, agents or Independent Project Manager arising out of or in any way related to this Agreement or the Study. 9.3 The Recipient shall at all times indemnify, save and keep harmless the Ministry, its employees and agents, from and against all suits, judgements, claims, demands, expenses and losses (including, without limitation, reasonable legal expenses) and for any and all liability for damages to property and injury to persons (including death) howsoever caused, as a result of any claim, demand or action arising out of Page 10 of 21 or in any way related to this Agreement or the Study. 9.4 The Recipient shall include in all contracts with the Independent Project Managers a provision which requires the Independent Project Manager to provide the indemnities referred to in Section 9.3. 9.5 Sections 9.1, 9.2, 9.3 and 9.4 and Section 9.5 hereof shall survive the expiration or early termination of this Agreement. SECTION 10 DEFAULT AND ENFORCEMENT 10.1 Each and every one of the following events is an "Event of Default ": 10.1.1 If, in the opinion of the Ministry, default is made in the performance of or compliance with any term or covenant contained in this Agreement to be performed or complied with by the Recipient; 10.1.2 If, in the opinion of the Ministry, any representation or warranty made by the Recipient in this Agreement or any certificate delivered to the Ministry pursuant hereto shall be materially untrue in any respect; 10.1.3 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; 10.1.4 If the Recipient uses any of the financial assistance for a purpose not authorized by this Agreement without the prior written consent of the Ministry; 10.1.5 If, in the opinion of the Ministry, a material adverse change occurs such that the viability of the Recipient as a going concern is threatened . in the opinion of the Ministry. 10.1.6 If, in the opinion of the Ministry, the Recipient ceases to operate; 10.1.7 If, in the opinion of the Ministry, the Recipient has failed to proceed diligently with the Study or abandons the Study in whole or in part, or the Recipient is otherwise in default in carrying out any of the terms, conditions or obligations of this Agreement, except where such failure is due to causes which, in the opinion of the Ministry are beyond the control of the Recipient; Page 11 of 21 10.1.8 If the Recipient has submitted false or misleading information to the Ministry. 10.2 The Ministry may, at any time, waive any Event of Default which may have occurred provided that no such waiver shall extend to, or be taken in any manner whatsoever to affect, any subsequent Event of Default or the right to remedies resulting therefrom, and that no such waiver shall be, or shall be deemed to constitute, a waiver of such Event of Default unless such waiver is in writing from the Ministry. 10.3 Notwithstanding any other rights which the Ministry may have under this Agreement, if any Event of Default shall occur and be continuing, the Ministry shall have the following remedies provided that it 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 10 Business Days or such longer period of time as the Ministry may consent to in writing: 10.3.1 The Ministry may at its option immediately and without further notice to the Recipient declare its commitment to provide the financial assistance terminated and all amounts of principal and interest (if any) then accrued on the financial assistance shall become immediately due and payable; 10.3.2 The Ministry shall have no further obligation to provide any financial assistance for the Study; 10.3.3 The Ministry may, at its option, terminate this Agreement and may require repayment for some or all of the financial assistance in an amount to be determined by the Ministry and within the period specified by the Ministry. The Ministry may deduct the amount of financial assistance to be repaid from financial assistance payable on any other projects) of the Recipient under the OSTAR Initiative or any other provincial program(s) (either current or future). This provision shall survive the expiration or termination of this Agreement. The total amount of all disbursements made pursuant to this Agreement shall be immediately due and payable by the Recipient and bear interest at the prevailing market rate to the Ministry; and, 10.3.4 The Ministry may avail itself of any of its legal remedies which it may deem appropriate. 10.4 In addition to the remedies described in Section 10.3, the Ministry may commence such legal action or proceedings as it, in its sole discretion, may deem expedient, without any additional notice under this Agreement. The rights and remedies of the Ministry hereunder are cumulative and in addition to, and not in substitution for, all Page 12 of 21 other rights or remedies otherwise available to the Ministry. 10.5 Despite Section 10.1, the Ministry reserves the right to terminate this Agreement without cause upon such conditions as the Ministry may require, with a minimum of fourteen (14) days written notice to the Recipient. If the Ministry terminates the • Agreement prior to its expiration, the Ministry shall only be responsible for the payment of financial assistance on a portion of the cost incurred by the Recipient in connection with the Agreement up to and including the date of any such termination. The portion paid will be calculated on the same basis as the financial assistance in Sections 4.1 to 4.7 of this Agreement. SECTION 11 CONFLICT OF INTEREST 11.1 The Recipient and its Independent Project Manager and any of their respective advisors, partners, directors, officers, employees, agents and volunteers shall not engage in any activity or provide any services to the Ministry where such activity or the provision of such services creates a conflict of interest (actually or potentially in the sole opinion of the Ministry) with the provision of services under this Agreement. The Recipient acknowledges and agrees that it shall be a conflict of interest for it to use confidential information of the Crown relevant to the Study where the Ministry has not specifically authorized such use. 11.2 The Recipient shall disclose to the Ministry without delay any actual or potential situation that may be reasonably interpreted as either a conflict of interest or a potential conflict of interest. 11.3 Abreach of Section 11 of this Agreement by the Recipient and /or its Independent Project Manager and /or any of their respective advisors, partners, directors, officers, employees, agents and volunteers shall entitle the Ministry to terminate the Agreement in addition to any other remedies that the Ministry has in the Agreement, in law or in equity. SECTION 12 CONFIDENTIALITY 12.1 The Recipient agrees to ensure that its Independent Project Manager and any of their respective advisors, partners, directors, officers, employees, agents and volunteers, shall both during and following the term of this Agreement, maintain the confidentiality and security of all material and information which is the property of the Ministry that becomes in possession or under the control of the Recipient, its Page 13 of21 Independent Project Manager and any of their respective advisors, partners, directors, officers, employees, agents and volunteers pursuant to this Agreement (collectively referred to as the "Confidential Information "). The Recipient agrees to ensure that its Independent Project Manager and any of their respective advisors, partners, directors, officers, employees, agents and volunteers, shall not directly or indirectly disclose or use, either during or following the completion of this Agreement, except where required by law, any material or information belonging to the Ministry, without first obtaining the written consent of the Minister for such disclosure or use. 12.2 The Recipient acknowledges that the Ministry is bound by the provisions of the Act and regulations thereunder. The Recipient shall ensure that it and its Independent Project Manager and any of their respective advisors, partners, directors, officers, employees, agents and volunteers, respect the Act, and for greater certainty, will not either directly or indirectly use, disclose or destroy the Confidential Information provided to it by the Ministry under this Agreement. 12.3 The Recipient and its Independent Project Manager and any of their respective advisors, partners, directors, officers, employees, agents and volunteers, shall retum all information and ensure that all copies of the Confidential Information and any portions thereof are also retumed with no copy kept by the Recipient and its Independent Project Manager and any of their respective advisors, partners, directors, officers, employees, agents and volunteers. 12.4 The Recipient and its Independent Project Manager and any of their respective advisors, partners, directors, officers, employees, agents and volunteers, shall keep the Confidential Information in a physically secure location, separate from all its other records and databases and the Recipient its Independent Project Manager and any of their respective advisors, its partners, directors, officers, employees, agents and volunteers, shall ensure that access to such Confidential Information is restricted to persons who require access for the purposes of completing the Study. SECTION 13 MINISTRY RECOGNITION 13.1 The Recipient acknowledges that Her Majesty the Queen in right of Ontario as represented by the Ministry of Finance is or will be the owner of certain distinguishing marks comprised of designs, trademarks and official marks including without limitation "SuperBuild" and "SuperCroissance" which have come or will come to be associated with the Province of Ontario and the SuperBuild program (all such current and future marks, being the "Licenced Marks "). 13.2 The Recipient agrees to acknowledge the financial assistance of the Ministry Page 14 of 21 • through the Govemment of Ontario's SuperBuild initiative to the Project in all advertising and publicity relating to the Study and in any construction signs and in any temporary or permanent tributes to Study donors by adhering to the SuperBuild Visual Identity Standards, a copy of which the Recipient acknowledges as having received. 13.3 In consideration of receiving the financial assistance, the Recipient agrees to use the Licenced Marks as follows: (a) The Recipient agrees to strictly use the Licenced Marks only as prescribed by the Visual Identity Standards and further as prescribed from time to time by the Ministry and not to use any other mark, trademark in combination with any of the Licenced Marks without the prior written approval of the Ministry. The Recipient agrees that it will not alter, modify, dilute or otherwise misuse the Licenced Marks. (b) The Recipient agrees to submit to the Ministry copies of any advertisements or promotional materials containing the Licenced Marks for Ministry approval prior to any use thereof and to remove therefrom either any reference to Licenced Marks or any element which the Ministry may from time to time upon reasonable notice designate. (c) The Recipient agrees that it will not state or imply, directly or indirectly, that the Recipient or the Recipient's activities, other than those permitted by this Agreement, are supported, endorsed, or sponsored by the Ministry and upon the direction of the Ministry shall issue express disclaimers to that effect. (d) The Recipient agrees to promptly inform the Ministry of any suspected infringement of any Licenced Marks by a third party. 13.4 Whether or not the Recipient is in breach of this Agreement, forthwith upon any receipt by the Recipient of a written direction from the Ministry, the Recipient shall cease using the Licensed Marks, and without limiting the generality of the foregoing, will remove all signage and remove from circulation any use or reference to the Licensed Marks. 13.5 The Recipient hereby indemnifies the Ministry against any and all claims for death, illness, personal injury, property damage, improper business practices, or loss of any kind where such claims are in whole or in part premised upon the Recipient's use of the Licensed Marks. Page 15 of 21 L' SECTION 14 COMMUNICATIONS 14.1 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 or other electronic means of communication addressed to the respective parties as follows: To the Ministrv: Ministry of Agriculture, Food and Rural Affairs 1 Stone Road West, 4 Floor Guelph, Ontario N1 G 4Y2 Phone: 1- 888 -466 -2372 Fax: (519) 826-4336 Email: dino.radocchia @ontario.ca Attention: Dino Radocchia, Manager To the Recipient: Municipality of Kincardine 1475 Concession 5, R.R.5 Kincardine, Ontario N2Z 2X6 Phone: (519) 396-3468 Fax: (519) 396-8288 Email: cao @kincardine.net Attention: Donna MacDougall Chief Administrative ,Officer (Acting) or to such other persons, address, email or facsimile number ortelecopy number 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 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 Page 16 of 21 - G thereof. Any demand, notice or communication mailed by registered mail shall be deemed to have been received on the third Business Day following the day on which it was mailed. SECTION 15 OTHER 15.1 The Recipient shall take reasonable measures to ensure that its officers, directors, partners, employees, agents and the Independent Project Manager shall be bound to observe all 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 any contract terms and conditions similar to and not less favourable to the Ministry than the terms and conditions of this Agreement to the extent that they are applicable to the work subcontracted. 15.2 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. 15.3 This Agreement, including: SCHEDULE I - Eligible Costs SCHEDULE II - Description of Study SCHEDULE III - Maximum Financial Assistance and Projected Cash Flows constitutes the entire Agreement between the parties. There are no prior or collateral agreements or representations. For greater certainty, Schedules I and II are referentially incorporated into this Agreement as they read immediately before the Effective Date of this Agreement. Schedule III of the P- Agreement, as may have been amended is not referentially incorporated into this Agreement. Schedule III is set out in this Agreement. 15.4 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. 15.5 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. Page 17 of21 a 15.6. The failure by the Ministry to insist in one or more instances on performance by the Recipient of any of the terms or conditions of this Agreement shall not be construed as a waiver of the Ministry's right to require further performance of any such terms or conditions, and the obligations of the Recipient with respect to such performance shall continue in full force and effect. 15.7 The division of this Agreement into 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. 15.8 This Agreement shall not be assigned or varied except by a document in writing, dated and signed on behalf of the Ministry and the Recipient. This provision shall survive the termination or expiration of this Agreement. 15.9 The Recipient represents and warrants to the Ministry that: 15.9.1 It is conducting its business in compliance with all applicable federal, provincial and municipal laws, and all rules, regulations, by -laws, notices, orders and approvals and, furthermore, that it has authority and any necessary approval to enter into this Agreement and to carry out its terms; and 15.9.2 It validly exists as a corporate entity with full power to perform and observe all the terms and conditions of this Agreement. 15.10 Nothing in this Agreement shall be deemed to constitute the Recipient as an employee, servant, agent, partner of or in joint venture with the Ministry for any purpose whatsoever. 15.11 The provision of financial assistance to the Recipient pursuant to this Agreement is for the sole purpose of, and is limited to, carrying out the Study. The Recipient warrants and agrees that under no circumstances shall it enter into any contract or commitment in the name of or on behalf of the Ministry and the Recipient acknowledges that it is not by the terms of this Agreement or otherwise, granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of or in the name of the Ministry or to bind the Ministry in any manner whatsoever other than as specifically provided-in this Agreement. 15.12 The Ministry acknowledges that, in connection with carrying out the terms of this Agreement, the Recipient may engage one or more Independent Project Managers. The Ministry acknowledges and agrees that the Recipient shall have the sole authority and responsibility for such employees, agents or Independent Project Managers including their hiring and termination. The Recipient acknowledges and agrees that the Recipient shall be responsible for all acts and actions of the Page 18 of 21 Recipient's employees, agents and Independent Project Manager and that all such acts and actions shall be treated as actions of the Recipient for the purposes of this Agreement. 15.13 For greater certainty, any overlap between this Agreement and the P- Agreement does not create a legal obligation on the Ministry to pay the Recipient twice nor does it create a legal obligation on the Recipient to do any additional work other than what is set out in this Agreement. 15.14 This Agreement shall be read in accordance with any amendments to the P- Agreement that may have been made, either before the P- Agreement expired or afterwards. In the event of a conflict between any amendments to the P- Agreement and this Agreement, the amendments to the P- Agreement shall take precedence in terms of resolving the conflict other than in terms of the Expiration Date of this Agreement — the Expiration Date of this Agreement shall take precedence over any amendments to the P- Agreement. 15.15 Notwithstanding section 15.14 of this Agreement Schedule III of this Agreement prevails over anything set out in Schedule III of the P- Agreement or any amendments thereto. 15.16 The Ministry and the Recipient shall be considered joint authors of this Agreement and no provision shall be interpreted against one party by the other party because of authorship. - [Rest of Page Intentionally Left Blank] = ; Page 19 of 21 In witness whereof, the Recipient and the Ministry have respectively signed the Agreement on the dates set out below. HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, As represented by the Minister of Agriculture, Food and Rural Affairs Name: The onourable Te McMeekin Da e Title: Minister of Agriculture, Food and Rural Affairs I have the authority to bind the Crown. THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE IP c a.. __ Drr. 2). e: , Kraea. -r Date 116;12_ nror _ =Affix Corporate Seal iro- o�.o, &e._. sa a-Gli Name: Donna MacDo gall Date Tithe: Chief Administrative Officer (Acting) I /we have the authority to bind the Recipient. Page 20of21 4 c SCHEDULE III This schedule referentially incorporates the Schedule 111 (Maximum Financial Assistance and Projected Cash Flows) from the P- Agreement as it read immediately before this agreement comes into effect with the following insertion: Maximum Financial Assistance 1. The maximum amount of financial assistance for the Study under this Agreement is $218,047.33 and is based on a maximum eligible cost of $327,054.64. • Page 21 of 21