BYLAW - Municipal Funding Agreement Transfer Fed Gas Tax Funds - 20140506 - 562114THE CORPORATION OF THE TOWN OF AURORA
By-law Number 5621-14
BEING A BYLAW to
authorize the execution of
the Municipal Funding
Agreement for the transfer
of federal Gas Tax Funds.
WHEREAS Canada, the Province of Ontario, Ontario municipalities as represented
by the Association of Municipalities of Ontario ("AMO") and Toronto are signatories to
the administrative agreement on The Federal Gas Tax Fund on April 1, 2014 (the
"Canada-Ontario-AMO-Toronto Agreement"), whereby AMO agreed to administer
federal gas tax funds made available to Ontario municipalities, excluding Toronto,
pursuant to the Canada-Ontario-AMO-Toronto Agreement on behalf of Canada;
AND WHEREAS the Canada-Ontario-AMO-Toronto Agreement contains a
framework for the transfer of federal gas tax funds to Ontario municipalities
represented by AMO and Toronto to provide stable, reliable and predictable funding
for municipal infrastructure purposes;
AND WHEREAS The Corporation of the Town of Aurora (the "Town") wishes to enter
into an agreement with AMO in order to participate in the federal Gas Tax Fund, as
provided for in the Canada-Ontario-AMO-Toronto Agreement;
AND WHEREAS subsection 5(3) of the Municipal Act, 2001, S.O. 2001, c.25, as
amended (the "Act"), provides that a municipal power, including a municipality's
capacity, rights, powers and privileges under section 9 of the Act, shall be exercised
by by-law unless the municipality is specifically authorized to do otherwise;
AND WHEREAS section 9 of the Act provides that a municipality has the capacity,
rights, powers and privileges of a natural person for the purposes of exercising its
authority under the Act, or any other statute;
AND WHEREAS the Council of the Town deems it necessary and expedient to
authorize the execution of the attached Municipal Funding Agreement for the transfer
of federal Gas Tax Funds;
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE TOWN OF
AURORA ENACTS AS FOLLOWS:
1. THAT the Mayor and Town Clerk are hereby authorized to execute the
"Municipal Funding Agreement" between AMO and the Town for the transfer of
federal Gas Tax Funds, attached hereto and forming part of this By-law as
Schedule "A".
2. THAT this By-law shall come into full force and effect on the date of final
passage hereof.
READ A FIRST AND SECOND TIME THIS 6th DAY OF MAY, 2014.
READ A THIRD TIME AND FINALLY PASSED THIS 6"' DAY OF MAY, 2014.
X e garm FF Y DAWE, MAYOR
?ljprove as 0
ByLega(Services
SigrwhrK
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SCHEDULE "A" TO BY-LAW NUMBER 5621-14
MUNICIPAL FUNDING AGREEMENT
FOR THE TRANSFER OF FEDERAL GAS TAX FUNDS
This Agreement made in duplicate as of 1st day of April, 2014.
BETWEEN:
AND:
THE ASSOCIATION OF MUNICIPALITIES OF ONTARIO
(referred to herein as "AMO")
THE CORPORATION OF THE TOWN OF AURORA
(a municipal corporation pursuant to the Municipal Act, 2001, referred to herein as the
"Recipient")
WHEREAS the Government of Canada makes up to $2 billion per year available for
allocation by the Government of Canada for the purpose of municipal, regional and First
Nations infrastructure starting in the fiscal year beginning on April 1, 2014 under Section 161
of Keeping Canada's Economy and Jobs Growing Act, S.C. 2011, c. 24;
WHEREAS Canada, the Province of Ontario, Ontario municipalities as represented by AMO
and Toronto are signatories to the administrative agreement on The Federal Gas Tax Fund
on April 1, 2014 (the "Canada-Ontario-AMO-Toronto Agreement"), whereby AMO agreed to
administer federal gas tax funds made available to Ontario municipalities, excluding Toronto,
pursuant to the Canada-Ontario-AMO-Toronto Agreement on behalf of Canada;
WHEREAS the Canada-Ontario-AMO-Toronto Agreement contains a framework for the
transfer of federal gas tax funds to Ontario municipalities represented by AMO and Toronto
to provide stable, reliable and predictable funding for municipal infrastructure purposes;
WHEREAS the Recipient wishes to enter into this Agreement in order to participate in the
federal Gas Tax Fund;
WHEREAS AMO is carrying out the fund administration and coordinating role in accordance
with its obligations set out in the Canada-Ontario-AMO-Toronto Agreement and it will
accordingly undertake certain activities and require Recipients to undertake activities as set
out in this Agreement.
THEREFORE the Parties agree as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions. When used in this Agreement (including the cover and execution
pages and all of the schedules), the following terms shall have the meanings
ascribed to them below unless the subject matter or context is inconsistent
therewith:
"Agreement" means this Agreement, including the cover and execution
pages and all of the schedules hereto, and all amendments made hereto in
accordance with the provisions hereof.
"Annual Report" means the duly completed report to be prepared and
delivered to AMO as described in Section 7.1 and Section 1 of Schedule D.
"Asset Management Plan" means a strategic document that states how a
group of assets are to be managed over a period of time. The plan describes
the characteristics and condition of infrastructure assets, the levels of service
expected from them, planned actions to ensure the assets are providing the
expected level of service, and financing strategies to implement the planned
actions. The plan may use any appropriate format, as long as it includes the
information and analysis required to be in a plan as described in Ontario's
Building Together: Guide for Asset Management Plans.
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"Association of Municipalities of Ontario (AMO)" means a legally
incorporated entity under the Corporations Act, 1990 R.S.O. 1990, Chapter
c.38.
"Base Amount" means an amount reflecting total municipally -funded capital
spending on Infrastructure between January 1, 2000 and December 31, 2004
less: (i) monies raised (during that period) under the Development Charges
Act, 1997 S.O, 1997, c.27; and (ii) monies received (during that period) by
Municipalities under federal and provincial infrastructure programs against
which investments of Funds will be measured to ensure that investments of
Funds are incremental.
"Canada" means Her Majesty in Right of Canada, as represented by the
President of the Queen's Privy Council for Canada, Minister of Infrastructure,
Communities and Intergovernmental Affairs.
"Contract" means an agreement between the Recipient and a Third Party
whereby the latter agrees to supply a product or service to an Eligible Project
in return for financial consideration.
"Eligible Expenditures" means those expenditures described as eligible in
Schedule C.
"Eligible Projects" means projects as described in Schedule B.
"Eligible Recipient" means:
(a) a Municipality or its agent (including its wholly owned corporation); and
(b) a non -municipal entity, including for profit, non -governmental and not -
for profit organizations, on the condition that the Municipality(ies) has
(have) indicated support for the project through a formal by-law passed
by its (their) council(s)
"Event of Default" has the meaning given to it in Section 12.1 of this
Agreement.
"First Agreement" means the Municipal Funding Agreement for the transfer
of federal gas tax revenues under the New Deal for Communities entered into
by AMO and THE CORPORATION OF THE TOWN OF AURORA, with an
expiry date of March 31, 2015.
"Funds" mean the Funds made available to the Recipient through the Gas
Tax Fund, a program established by the Government of Canada under
Section 161 of the Keeping Canada's Economy and Jobs Growing Act, S.C.
2011, c. 24 as amended by Section 233 of the Economic Action Plan 2013
Act, No. 1, S.C. 2013, C. 33 or any other source of funding as determined by
Canada. Funds are made available pursuant to this Agreement and includes
any interest earned on the said Funds. For greater certainty: (i) Funds
transferred to another Municipality in accordance with Section 6.2 of this
Agreement, other than as set out in Sections 7.1(a), (c) and (f), are to be
treated as Funds by the Municipality to which the Funds are transferred and
are not to be treated as Funds by the Recipient; and (ii) any Funds transferred
to a non -municipal entity in accordance with Section 6.3 of this Agreement
shall remain as Funds under this Agreement for all purposes and the
Recipient shall continue to be bound by all provisions of this Agreement with
respect to such transferred Funds.
"Ineligible Expenditures" means those expenditures described as ineligible
in Schedule C.
"Infrastructure" means municipal or regional, publicly or privately owned,
tangible capital assets primarily for public use or benefit in Ontario.
"Lower Tier Municipality" means a municipality that forms part of an upper -
tier Municipality for municipal purposes, as defined under the Municipal Act,
2001 S.O. 2001 c.25.
"Municipal Fiscal Year" means the period beginning January 1st of a year
and ending December 31't of the same year.
"Municipality" and "Municipalities" means every municipality as defined
under the Municipal Act, 2001 S.O. 2001 c.25.
"One Investment Program" means the co -investment program operated
jointly by Local Authority Services, an incorporated subsidiary of AMO and
CHUMS Financing Corporation, an incorporated wholly -owned subsidiary of
the Municipal Finance Officers' Association of Ontario.
"Outcomes Report" means the report prepared and delivered to AMO by the
Recipient by March 31, 2017 and again by March 31, 2022 which reports on
how Funds are supporting progress towards achieving the program benefits,
more specifically described in Schedule D.
"Oversight Committee" means the committee established to monitor the
overall implementation of the Canada-Ontario-AMO-Toronto Agreement.
"Parties" means AMO and the Recipient.
"Recipient" has the meaning given to it on the first page of this Agreement.
"Third Party" means any person or legal entity, other than the Parties to this
Agreement who participates in the implementation of an Eligible Project by
means of a Contract.
"Transfer By-law" means a by-law passed by Council of the Recipient
pursuant to Section 6.2 and delivered to AMO in accordance with that section.
"Unspent Funds" means the amount reported as unspent by the Recipient
as of December 31, 2013 as submitted in the Recipient's 2013 Annual
Expenditure Report (as defined under the First Agreement).
"Upper Tier Municipality" means a Municipality of which two or more lower -
tier municipalities form part for municipal purposes, as defined under the
Municipal Act, 2001 S.O. 2001 c.25.
1.2 Interpretations:
Herein, etc. The words "herein", "hereof' and "hereunder" and other words of
similar import refer to this Agreement as a whole and not any particular
schedule, article, section, paragraph or other subdivision of this Agreement.
Currency. Any reference to currency is to Canadian currency and any
amount advanced, paid or calculated is to be advanced, paid or calculated in
Canadian currency.
Statutes. Any reference to a federal or provincial statute is to such statute
and to the regulations made pursuant to such statute as such statute and
regulations may at any time be amended or modified and in effect and to any
statute or regulations that may be passed that have the effect of
supplementing or superseding such statute or regulations.
Gender, singular, etc. Words importing the masculine gender include the
feminine or neuter gender and words in the singular include the plural, and
vice versa.
2. TERM OF AGREEMENT
2.1 Term. Subject to any extension or termination of this Agreement or the
survival of any of the provisions of this Agreement pursuant to the provisions
contained herein, this Agreement shall be in effect from the date set out on the
first page of this Agreement, up to and including March 31, 2024.
2.2 Review. This Agreement will be reviewed by AMO by December 31, 2018.
2.3 Amendment. This Agreement may be amended at any time in writing as
agreed to by AMO and the Recipient.
2.4 Notice. Any of the Parties may terminate this Agreement on two (2) years
written notice.
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2.5 The Parties agree that the First Agreement, including section 15.4 thereof, is
hereby terminated. Notwithstanding the termination of the First Agreement,
including section 15.4, the reporting and indemnity obligations of the Recipient
thereunder with respect to expended Funds governed by the First Agreement
as set forth in sections 5, 7, 10.4, 10.5 and 10.6 of the First Agreement shall
survive the said termination.
3. RECIPIENT REQUIREMENTS
3.1 Communications. The Recipient will comply with all requirements outlined in
Schedule E, including:
(a) Providing upfront project information on an annual basis for
communications purposes;
(b) Including Canada in local project communications; and
(c) Installing federal project signs.
3.2 Incrementality. Any Funds that the Recipient may receive from Canada are
not intended to replace or displace existing sources of funding for the
Recipient's tangible capital assets. The Recipient will ensure that its total
annual expenditures on tangible capital assets over the life of the Agreement,
on average, will not be less than the Base Amount.
3.3 Contracts. The Recipient will award and manage all Contracts in accordance
with its relevant policies and procedures and, if applicable, in accordance with
the Agreement on Internal Trade and applicable international trade
agreements, and all other applicable laws.
(a) The Recipient will ensure any of its Contracts for the supply of services
or materials to implement its responsibilities under this Agreement will
be awarded in a way that is transparent, competitive, consistent with
value for money principles and pursuant to its adopted procurement
policy.
4. ELIGIBLE PROJECTS
4.1 Eligible Project Categories. Eligible Projects include investments in
Infrastructure for its construction, renewal or material enhancement in the
categories of public transit, local roads and bridges, wastewater, water, solid
waste, community energy systems, capacity building, local and regional
airports, short -line rail, short -sea shipping, disaster mitigation, broadband
connectivity, brownfield redevelopment, cultural, tourism, sport and
recreational infrastructure, as more specifically described in Schedule B and
Schedule C.
4.2 Recipient Fully Responsible. The Recipient is fully responsible for the
completion of each Eligible Project in accordance with Schedule B and
Schedule C.
5. ELIGIBLE EXPENDITURES
5.1 Eligible Expenditures. Schedule C sets out specific requirements for Eligible
and Ineligible Expenditures.
5.2 Discretion of Canada. Subject to Section 5.1, the eligibility of any items not
listed in Schedule B and/or Schedule C to this Agreement is solely at the
discretion of Canada
5.3 Unspent Funds. Any Unspent Funds, and any interest earned thereon, will be
subject to the terms and conditions of this Agreement, and will no longer be
governed by the terms and conditions of the First Agreement.
5.4 Reasonable Access. The Recipient shall allow AMO and Canada
reasonable and timely access to all documentation, records and accounts and
those of their respective agents or Third Parties related to the receipt, deposit
and use of Funds and Unspent Funds, and any interest earned thereon, and
all other relevant information and documentation requested by AMO or
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Canada or their respective designated representatives for the purposes of
audit, evaluation, and ensuring compliance with this Agreement.
5.5 Retention of Receipts. The Recipient will keep proper and accurate
accounts and records of all Eligible Projects including invoices and receipts for
Eligible Expenditures in accordance with the Recipient's municipal records
retention by-law and, upon reasonable notice, make them available to AMO
and Canada.
6. FUNDS
6.1 Allocation of Funds. AMO will allocate and transfer Funds that Canada may
make available for Ontario Municipalities to Recipients on a per capita basis
with allocations made on a 50:50 basis to upper -tier and lower -tier
Municipalities, where they exist.
6.2 Transfer of Funds to a Municipality. Where a Recipient decides to allocate
and transfer Funds to another Municipality (the "Transferee Municipality"):
(a) The allocation and transfer shall be authorized by by-law (a "Transfer
By-law"). The Transfer By-law shall be passed by the Recipient's
council and submitted to AMO as soon thereafter as practicable. The
Transfer By-law shall identify the Transferee Municipality and the
amount of Funds the Transferee Municipality is to receive for the
Municipal Fiscal Year specified in the Transfer By-law.
(b) The Recipient is still required to submit an Annual Report in
accordance with Sections 7.1 (a), (c) and (f) hereof with respect to the
Funds transferred.
(c) No transfer of Funds pursuant to this Section 6.2 shall be effected
unless and until the Transferee Municipality has either (i) entered into
an agreement with AMO on substantially the same terms as this
Agreement, or (ii) has executed and delivered to AMO a written
undertaking to assume all of the Recipient's obligations under this
Agreement with respect to the Funds transferred; in a form satisfactory
to AMO.
6.3 Transfer of Funds to a non -municipal entity. Where a Recipient decides to
support an Eligible Project undertaken by an Eligible Recipient that is not a
Municipality:
(a) The provision of such support shall be authorized by a by-law (a "Non -
municipal Transfer By-law"). The Non -municipal Transfer By-law shall
be passed by the Recipient's council and submitted to AMO as soon as
practicable thereafter. The Non -municipal Transfer By-law shall identify
the Eligible Recipient, and the amount of Funds the Eligible Recipient
is to receive for that Eligible Project.
(b) The Recipient shall continue to be bound by all of the provisions of this
Agreement notwithstanding any such transfer.
(c) No transfer of Funds pursuant to this Section 6.3 shall be effected
unless and until the non -municipal entity receiving the Funds has
executed and delivered to AMO a written undertaking to assume all of
the Recipient's obligations under this Agreement with respect to the
Funds transferred, in a form satisfactory to AMO.
6.4 Use of Funds. The Recipient acknowledges and agrees the Funds are
intended for and shall be used only for Eligible Expenditures in respect of
Eligible Projects.
6.5 Schedule of payout of Funds. The Recipient agrees that all Funds are to be
transferred by AMO to the Recipient as set out in Schedule A. Subject to
Section 6.14, AMO will transfer Funds twice yearly, on or before the dates
agreed upon by Canada and AMO, and, more specifically on the basis set out
in Schedule A.
6.6 Use of Funds. The Recipient will deposit the Funds in a dedicated reserve
fund or other separate distinct interest bearing account or invest the Funds
through the One Investment Program or any other eligible investment
permitted by the Ontario Municipal Act, 2001 and shall retain the Funds in
such reserve fund, account or investment until the Funds are expended or
transferred in accordance with this Agreement. The Recipient shall ensure
that:
(a) any investment of unexpended Funds will be in accordance with
Ontario law and the Recipient's investment policy; and,
(b) any interest earned on Funds will only be applied to Eligible
Expenditures for Eligible Projects, more specifically on the basis set
out in Schedule B and Schedule C.
6.7 Funds advanced. Funds transferred by AMO to the Recipient shall be
expended by the Recipient in respect of Eligible Expenditures within five (5)
years after the end of the year in which Funds were received. Unexpended
Funds shall not be retained beyond such five (5) year period. AMO reserves
the right to declare that Unexpended Funds after five (5) years become a debt
to Canada which the Recipient will reimburse forthwith on demand to AMO for
transmission to Canada.
6.8 Expenditure of Funds. The Recipient shall expend all Funds by December
31, 2028.
6.9 GST & HST. The use of Funds is based on the net amount of goods and
services tax or harmonized sales tax to be paid by the Recipient net of any
applicable tax rebates.
6.10 Limit on Canada's Financial Commitments. The Recipient may use Funds
to pay up to one hundred percent (100%) of Eligible Expenditures of an
Eligible Project.
6.11 Federal Funds. The Recipient agrees that any Funds received will be treated
as federal funds for the purpose of other federal infrastructure programs.
6.12 Stacking. If the Recipient is receiving federal funds under other federal
infrastructure programs in respect of an Eligible Project to which the Recipient
wishes to apply Funds, the maximum federal contribution limitation set out in
any other federal infrastructure program agreement made in respect of that
Eligible Project shall continue to apply.
6.13 Withholding Payment. AMO may withhold payment of Funds where the
Recipient is in default of compliance with any provisions of this Agreement.
6.14 Insufficient funds provided by Canada. Notwithstanding Section 2.4, if
Canada does not provide sufficient funds to continue the Funds for any
Municipal Fiscal Year during which this Agreement is in effect, AMO may
terminate this Agreement.
7. REPORTING REQUIREMENTS
7.1 Annual Report. The Recipient shall report in the form in Schedule D due by
March 31st following each Municipal Fiscal Year on:
(a) the amounts received from AMO under this Agreement in respect of
the previous Municipal Fiscal Year;
(b) the amounts received from another Municipality;
(c) the amounts transferred to another Municipality;
(d) amounts paid by the Recipient in aggregate for Eligible Projects;
(e) amounts held at year end by the Recipient in aggregate, including
interest, to pay for Eligible Projects;
(f) indicate in a narrative the progress that the Recipient has made in
meeting its commitments and contributions; and,
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(g) a listing of all Eligible Projects that have been funded, indicating the
location, investment category, project description, amount of Funds
and total project cost.
7.2 Outcomes Report, The Recipient shall account in writing for outcomes
achieved as a result of the Funds through an Outcomes Report to be
submitted to AMO. Specifically the Outcomes Report shall describe, in a
manner to be provided by AMO, the degree to which investments in each
Eligible Project are supporting progress towards achieving:
(a) beneficial impacts on communities of completed Eligible Projects; and
(b) enhanced impact of Funds as a predictable source of funding.
8. ASSET MANAGEMENT
8.1 Asset Management Plan. The Recipient will develop and implement an Asset
Management Plan prior to December 31, 2016.
8.2 Outcomes. On a date and in a manner to be determined by AMO, the
Recipient will provide a report to AMO demonstrating that Asset Management
Plans are being used to guide infrastructure planning and investment
decisions and how Funds are being used to address priority projects.
9. RECORDS AND AUDIT
9.1 Accounting Principles. All accounting terms not otherwise defined herein
have the meanings assigned to them; all calculations will be made and all
financial data to be submitted will be prepared in accordance with generally
accepted accounting principles (GAAP) in effect in Ontario. GAAP will include,
without limitation, those principles approved or recommended for local
governments from time to time by the Public Sector Accounting Board or the
Canadian Institute of Chartered Accountants or any successor institute,
applied on a consistent basis.
9.2 Separate Records. The Recipient shall maintain separate records and
documentation for the Funds and keep all records including invoices,
statements, receipts and vouchers in respect of Funds expended on Eligible
Projects in accordance with the Recipient's municipal records retention by-
law. Upon reasonable notice, the Recipient shall submit all records and
documentation relating to the Funds to AMO and Canada for inspection or
audit.
9.3 External Auditor. AMO and/or Canada may request, upon written
notification, an audit of Eligible Project or an Annual Report. AMO shall retain
an external auditor to carry out an audit of the material referred to in
Sections 5.4 and 5.5 of this Agreement. AMO shall ensure that any auditor
who conducts an audit pursuant to this Section of this Agreement or
otherwise, provides a copy of the audit report to the Recipient and Canada at
the same time that the audit report is given to AMO.
10. INSURANCE AND INDEMNITY
10.1 Insurance. The Recipient shall put in effect and maintain in full force and
effect or cause to be put into effect and maintained for the term of this
Agreement all the necessary insurance with respect to each Eligible Project,
including any Eligible Projects with respect to which the Recipient has
transferred Funds pursuant to Section 6 of this Agreement, that would be
considered appropriate for a prudent Municipality undertaking Eligible
Projects, including, where appropriate and without limitation, property,
construction and liability insurance, which insurance coverage shall identify
Canada and AMO as additional insureds for the purposes of the Eligible
Projects.
10.2 Certificates of Insurance. Throughout the term of this Agreement, the
Recipient shall provide AMO with a valid certificate of insurance that confirms
compliance with the requirements of Section 10.1. No Funds shall be
expended or transferred pursuant to this Agreement until such certificate has
been delivered to AMO.
10.3
AMO not liable. In no event shall Canada or AMO be liable for:
(a) any bodily injury, death or property damages to the Recipient, its
employees, agents or consultants or for any claim, demand or action
by any Third Party against the Recipient, its employees, agents or
consultants, arising out of or in any way related to this Agreement; 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 any or in any way related to this Agreement.
10.4 Recipient to Compensate Canada. The Recipient will ensure that it will not,
at any time, hold Canada, its officers, servants, employees or agents
responsible for any claims or losses of any kind that the Recipient, Third
Parties or any other person or entity may suffer in relation to any matter
related to the Funds or an Eligible Project and that the Recipient will, at all
times, compensate Canada, its officers, servants, employees and agents for
any claims or losses of any kind that any of them may suffer in relation to any
matter related to the Funds or an Eligible Project. The Recipient's obligation
to compensate as set out in this section does not apply to the extent to which
such claims or losses relate to the negligence of an officer, servant, employee,
or agent of Canada in the performance of his or her duties.
10.5 Recipient to Indemnify AMO. The Recipient hereby agrees to indemnify and
hold harmless AMO, its officers, servants, employees or agents (each of
which is called an "Indemnitee"), from and against all claims, losses,
damages, liabilities and related expenses including the fees, charges and
disbursements of any counsel for any Indemnitee incurred by any Indemnitee
or asserted against any Indemnitee by whomsoever brought or prosecuted in
any manner based upon, or occasioned by, any injury to persons, damage to
or loss or destruction of property, economic loss or infringement of rights
caused by or arising directly or indirectly from:
(a) the Funds;
(b) the Recipient's Eligible Projects, including the design, construction,
operation, maintenance and repair of any part or all of the Eligible
Projects;
(c) the performance of this Agreement or the breach of any term or
condition of this Agreement by the Recipient, its officers, servants,
employees and agents, or by a Third Party, its officers, servants,
employees, or agents; and
(d) any omission or other wilful or negligent act of the Recipient or Third
Party and their respective officers, servants, employees or agents.
11. TRANSFER AND OPERATION OF MUNICIPAL INFRASTRUCTURE
11.1 Reinvestment. The Recipient will invest into Eligible Projects, any revenue
that is generated from the sale, lease, encumbrance or other disposal of an
asset resulting from an Eligible Project where such disposal takes place within
five (5) years of the date of completion of the Eligible Project.
11.2 Notice. The Recipient shall notify AMC in writing 120 days in advance and at
any time during the five (5) years following the date of completion of an
Eligible Project if it is sold, leased, encumbered or otherwise disposed of.
11.3 Public Use. The Recipient will ensure that Infrastructure resulting from any
Eligible Project that is not sold, leased, encumbered or otherwise disposed of,
remains primarily for public use or benefit.
12. DEFAULT AND TERMINATION
12.1 Event of Default. AMO may declare in writing that an event of default has
occurred when the Recipient has not complied with any condition, undertaking
or term in this Agreement. AMO will not declare in writing that an event of
default has occurred unless it has first consulted with the Recipient. Each and
every one of the following events is an "Event of Default":
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(a) failure by the Recipient to deliver in a timely manner an Annual Report
or Outcomes Report.
(b) delivery of an Annual Report that discloses non-compliance with any
condition, undertaking or material term in this Agreement.
(c) failure by the Recipient to co-operate in an external audit undertaken
by AMO or its agents.
(d) delivery of an external audit report that discloses non-compliance with
any condition, undertaking or term in this Agreement.
(e) failure by the Recipient to expend Funds in accordance with
Section 6.7.
12.2 Waiver. AMO may withdraw its notice of an Event of Default if the Recipient,
within thirty (30) calendar days of receipt of the notice, either corrects the
default or demonstrates, to the satisfaction of AMO in its sole discretion that it
has taken such steps as are necessary to correct the default.
12.3 Remedies on default. If AMO declares that an Event of Default has occurred
under Section 12.1, after thirty (30) calendar days from the Recipient's receipt
of the notice of an Event of Default, it may immediately terminate or suspend
its obligation to pay the Funds. If AMO suspends payment, it may pay
suspended Funds if AMO is satisfied that the default has been cured.
12.4 Repayment of Funds. If AMO declares that an Event of Default has not been
cured to its satisfaction, AMO reserves the right to declare that prior payments
of Funds become a debt to Canada which the Recipient will reimburse
forthwith on demand to AMO for transmission to Canada.
13. CONFLICT OF INTEREST
13.1 No conflict of interest. The Recipient will ensure that no current member of
the AMO Board of Directors and no current or former public servant or office
holder to whom any post -employment, ethics and conflict of interest
legislation, guidelines, codes or policies of Canada applies will derive direct
benefit from the Funds, the Unspent Funds, and interest earned thereon,
unless the provision of receipt of such benefits is in compliance with such
legislation, guidelines, policies or codes.
14. NOTICE
14.1 Notice. Any notice, information or document provided for under this
Agreement will be effectively given if in writing and if delivered by hand, or
overnight courier, mailed, postage or other charges prepaid, or sent by
facsimile or email to the addresses, the facsimile numbers or email addresses
set out in Section 14.3. Any notice that is sent by hand or overnight courier
service shall be deemed to have been given when received; any notice mailed
shall be deemed to have been received on the eighth (8) calendar day
following the day on which it was mailed; any notice sent by facsimile shall be
deemed to have been given when sent; any notice sent by email shall be
deemed to have been received on the sender's receipt of an acknowledgment
from the intended recipient (such as by the "return receipt requested" function,
as available, return email or other written acknowledgment), provided that in
the case of a notice sent by facsimile or email, if it is not given on a business
day before 4:30 p.m. Eastern Standard Time, it shall be deemed to have been
given at 8:30 a.m. on the next business day for the recipient.
14.2 Representatives. The individuals identified in Section 14.3 of this
Agreement, in the first instance, act as AMO's or the Recipient's, as the case
may be, representative for the purpose of implementing this Agreement.
14.3 Addresses for Notice. Further to Section 14.1 of this Agreement, notice can
be given at the following addresses:
(a) If to AMO:
Executive Director
Federal Gas Tax Fund Agreement
Association of Municipalities of Ontario
200 University Avenue, Suite 801
Toronto, ON M5H 3C6
Telephone: 416-971-9856
Facsimile: 416-971-6191
Email: gastax@amo.on.ca
(b) If to the Recipient:
Dan Elliott
Director, Corporate & Financial Services/Treasurer
Town of Aurora
100 John West Way, Box 1000,
Aurora, ON L4G 6J1
Telephone: (905) 726-4772
Facsimile: (905) 727-1953
Email: delliott@aurora.ca
15. MISCELLANEOUS
15.1 Counterpart Signature. This Agreement may be signed in counterpart, and
the signed copies will, when attached, constitute an original Agreement.
15.2 Severability. If for any reason a provision of this Agreement that is not a
fundamental term is found to be or becomes invalid or unenforceable, in whole
or in part, it will be deemed to be severable and will be deleted from this
Agreement, but all the other terms and conditions of this Agreement will
continue to be valid and enforceable.
15.3 Waiver. AMO may waive any right in this Agreement only in writing, and any
tolerance or indulgence demonstrated by AMO will not constitute waiver of
rights in this Agreement. Unless a waiver is executed in writing, AMO will be
entitled to seek any remedy that it may have under this Agreement or under
the law.
15.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable in Ontario.
15.5 Survival. The Recipient agrees that the following sections and provisions of
this Agreement shall extend for seven (7) years beyond the expiration or
termination of this Agreement: Sections 5, 6.7, 6.8, 7, 10.4, 10.5, 11, 12.4 and
15.8.
15.6 AMO, Canada and Recipient independent. The Recipient will ensure its
actions do not establish or will not 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 Recipient,
between AMO and the Recipient, between Canada and a Third Party or
between AMO and a Third Party.
15.7 No Authority to Represent. The Recipient will ensure that it does not
represent itself, including in any agreement with a Third Party, as a partner,
employee or agent of Canada or AMO.
15.8 Debts Due to AMO. Any amount owed under this Agreement will constitute a
debt due to AMO, which the Recipient will reimburse forthwith, on demand, to
AMO.
15.9 Priority. In the event of a conflict, the part of this Agreement that precedes
the signature of the Parties will take precedence over the Schedules.
16. SCHEDULES
16.1 This Agreement, including:
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Schedule A Schedule of Fund Payments
Schedule B Eligible Project Categories
Schedule C Eligible and Ineligible Expenditures
Schedule D Reporting
Schedule E Communications
constitute the entire agreement between the Parties with respect to the
subject matter contained in this Agreement and supersedes all prior oral or
written representations and agreements.
17. SIGNATURES
IN WITNESS WHEREOF, AMO and the Recipient have respectively executed, sealed and
delivered this Agreement on the date set out on the front page.
RECIPIENT'S NAME: THE CORPORATION OF THE TOWN OF
AURORA
By:
Geoffrey Dawe Date
Mayor
Stephen M.A. Huycke Date
Town Clerk
Affix Corporate Seal
THE ASSOCIATION OF MUNICIPALITIES OF ONTARIO
M
Title: Executive Director
In the presence of:
Witness:
Title:
Affix Corporate Seal
Date
Date
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SCHEDULE A
SCHEDULE OF FUND PAYMENTS
RECIPIENT'S NAME: THE CORPORATION OF THE TOWN OF AURORA
The following represents an estimate of the Funds and schedule of payments for the first five
(5) years of the Agreement.
Year
Schedule of Fund Payments
Payment #1
Payment #2
2014
$770,267.44
$770,257.44
2015
$770,267.44
$770,267.44
2016
$808,770.31
$808,770.31
2017
$808,770.31
$808,770.31
2018
$847,283.19
$847,283.18
An estimate of the Funds and schedule of payments for the latter five (5) years of the
Agreement (2019-2023) will be provided following the review and amendment procedures
specified in Section 2.2 and 2.3.
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SCHEDULE B
ELIGIBLE PROJECT CATEGORIES
Eligible Projects include investments in Infrastructure for its construction, renewal or material
enhancement in each of the following categories:
1. Local roads and bridges — i.e. roads, bridges, tunnels, highways and active
transportation infrastructure (active transportation refers to investments that support
active methods of travel. This can include: cycling lanes and paths, sidewalks, hiking
and walking trails).
2. Public transit — i.e. a shared passenger transport system which is available for public
use.
3. Drinking Water — i.e. drinking water conservation, collection, treatment and
distribution systems.
4. Wastewater — i.e. wastewater and storm water collection, treatment and management
systems.
5. Solid waste — i.e. solid waste management systems including the collection, diversion
and disposal of recyclables, compostable materials and garbage.
6. Community energy systems — i.e. infrastructure that generates or increases the
efficient usage of energy.
7. Capacity building - i.e. investments related to strengthening the ability of
Municipalities to develop long-term planning practices.
8. Short -sea shipping — i.e. infrastructure related to the movement of cargo and
passengers around the coast and on inland waterways, without directly crossing an
ocean.
9. Short -line rail — i.e. railway related infrastructure for carriage of passengers or freight.
10. Regional and local airports — i.e. airport -related infrastructure (excludes the National
Airport System).
11. Broadband connectivity — i.e. infrastructure that provides internet access to residents,
businesses, and/or institutions in Canadian communities.
12. Brownfield Redevelopment i.e. remediation or decontamination and redevelopment
of a brownfield site within municipal boundaries, where the redevelopment includes:
(a) the construction of public infrastructure as identified in the context of any other
eligible category referred to in this Schedule, and/or;
(b) the construction of municipal use public parks and publicly -owned social
housing.
13. Sport Infrastructure — i.e. amateur sport infrastructure (excludes facilities, including
arenas, which would be used as the home of professional sports teams or major
junior hockey teams (e.g. Junior A)).
14. Recreational Infrastructure - i.e. recreational facilities or networks.
15. Cultural Infrastructure — i.e. infrastructure that supports arts, humanities, and heritage.
16, Tourism Infrastructure — i.e. infrastructure that attracts travelers for recreation, leisure,
business or other purposes.
17. Disaster mitigation — i.e. infrastructure that reduces or eliminates long-term impacts
and risks associated with natural disasters.
Note: Investments in health infrastructure (hospitals, convalescent and senior centres) are
not eligible.
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Eligible Expenditures
1.1 Eligible Expenditures of Recipients will be limited to the following:
(a) the expenditures associated with acquiring, planning, designing,
constructing or renovating a tangible capital asset, as defined by
Generally Accepted Accounting Principles (GAAP), and any related
debt financing charges specifically identified with that asset;
(b) for capacity building category only, the expenditures related to
strengthening the ability of Municipalities to improve local and regional
planning including capital investment plans, integrated community
sustainability plans, life -cycle cost assessments, and Asset
Management Plans. The expenditures could include developing and
implementing:
(i) studies, strategies, or systems related to asset management,
which may include software acquisition and implementation;
(ii) training directly related to asset management planning; and,
(iii) long-term infrastructure plans.
(c) the expenditures directly associated with joint federal communication
activities and with federal project signage.
1.2 Employee and Equipment Costs: The incremental costs of the Recipient's
employees or leasing of equipment may be included as Eligible Expenditures
under the following conditions:
(a) the Recipient is able to demonstrate that it is not economically feasible
to tender a contract;
(b) the employee or equipment is engaged directly in respect of the work
that would have been the subject of the contract; and
(c) the arrangement is approved in advance and in writing by the
Oversight Committee.
1.3 AMO as Agreement Administrator: Up to 0.5% of the total funds will used
by AMO to undertake the administrative responsibilities to implement the
Agreement and to undertake related capacity building and program delivery
including expenditures associated with communication activities such as
public project announcements and signage. Canada will review and accept
AMO's detailed business case submitted in accordance with the Canada-
Ontario-AMO-Toronto Agreement prior to undertaking the administrative and
related activities.
2. Ineligible Expenditures
The following are deemed Ineligible Expenditures:
(a) project expenditures incurred before April 1, 2005;
(b) project expenditures incurred before April 1, 2014 for the following
Eligible Project categories:
(i) regional and local airports;
(i i) short -line rail;
(iii) short -sea shipping;
(iv) disaster mitigation;
(v) broadband connectivity;
(vi) brownfield redevelopment;
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(vii) cultural infrastructure;
(viii) tourism infrastructure;
(ix) sport infrastructure; and
(x) recreational infrastructure.
(c) the cost of leasing of equipment by the Recipient, any overhead costs,
including salaries and other employment benefits of any employees of
the Recipient, its direct or indirect operating or administrative costs of
Recipients, and more specifically its costs related to planning,
engineering, architecture, supervision, management and other
activities normally carried out by its staff, except in accordance with
Eligible Expenditures above;
(d) taxes for which the Recipient is eligible for a tax rebate and all other
costs eligible for rebates;
(e) purchase of land or any interest therein, and related costs;
(f) legal fees; and
(g) routine repair and maintenance costs.
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SCHEDULE D
REPORTING
1. Annual Report
By March 315t of each year, the Recipient will provide to AMO an Annual Report in an
electronic format deemed acceptable to AMO, consisting of the following:
(a) Financial Reporting Table: The financial report table will be submitted
in accordance with the following template:
Annual Report Financial Table
Annual
Cumulative
20xx
2014 - 20xx
Opening Balance
$xxx
Received from AMO
$xxx
$xxx
Interest Earned
$xxx
$xxx
Received from a Municipality
$xxx
$xxx
Transferred to a Municipality
($xxx)
($xxx)
Spent on Eligible Projects (for
each Eligible Project category)
($xxx)
($xxx)
Closing Balance of unspent
funds
$xxx
(b) Project List: The Recipient will provide to AMO a project list submitted
in accordance with the following template:
Recipient
project
Project
project Eligible
Total
Funds (GTF)
Completed
Title
Description
category
project Cost
Spent
(Yes/No/Ongoing)
(Yes/No/Ongoing)
(Yes/No/Ongoing)
(Yes/No/Ongoing)
2. Project Outcomes.
The Outcomes Report shall outline, in a manner to be provided by AMO, the degree to which
investments in each project are supporting progress towards achieving:
(a) Beneficial impacts on communities of completed Eligible Projects; and
(b) Enhanced impact of Funds as a predictable source of funding.
3. Asset Management Outcomes.
On a date and in a manner to be determined by AMO, the Recipient will provide a report to
AMO demonstrating that Asset Management Plans are being used to guide infrastructure
planning and investment decisions and how Funds are being used to address priority
projects.
1 For the 2014 Annual Report this means the amount reported as unspent by the Recipient at December 31, 2013
as reported in the 2013 Annual Expenditure Report (as defined under the First Agreement).
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SCHEDULE E
4. Purpose. The provisions of this Communications Protocol apply to all
communications activities related to any Funds and Eligible Projects.
Communications activities may include, but are not limited to, public or media events,
news releases, reports, web articles, blogs, project signs, digital signs, publications,
success stories and vignettes, photo compilations, videos, advertising campaigns,
awareness campaigns, editorials, award programs, and multi -media products.
5. Information Sharing. The Recipient agrees to provide AMC with upfront information
on planned Eligible Projects and Eligible Projects in progress on an annual basis, in
an electronic format deemed acceptable by AMC, by March 31. Information will
include, at a minimum: Eligible Project name, Eligible Category, Eligible Project
description, total budgeted federal contribution (gas tax) and anticipated start date.
6. Project Signage
6.1 The Recipient may have a sign recognizing its contribution to Eligible Projects.
6.2 At Canada's request, the Recipient will install a federal sign to recognize
federal funding at Eligible Project site(s). Federal sign design, content and
installation guidelines will be provided by Canada.
6.3 Where the Recipient decides to install a permanent plaque or other suitable
marker with respect to an Eligible Project, it must recognize the federal
contribution to the Eligible Project and be approved by Canada.
6.4 The Recipient is responsible for the production and installation of Eligible
Project signage, or as otherwise agreed upon.
6.5 The Recipient agrees to inform AMC of signage installations, in a manner
determined by AMO.
Media Events and Announcements for Eligible Projects
7.1 The Recipient agrees to have regular announcements of Eligible Projects that
are benefitting from the Funds that may be provided by Canada. Key
milestones may be marked by public events, news releases and/or other
mechanisms.
7.2 Media events and announcements include, but are not limited to, news
conferences, public announcements, official events or ceremonies, and news
releases.
7.3 Canada, AMC or the Recipient, may request a media event or announcement.
7.4 Media events and announcements related to Eligible Projects will not occur
without the prior knowledge and agreement of AMO, Canada and the
Recipient. AMC as administrator will ensure prior knowledge and agreement
of other signatories to the Canada-Ontario-AMO-Toronto Agreement.
7.5 Canada, AMO or the Recipient in requesting a media event or an
announcement will provide at least 21 working days' notice to the Parties of
their intention to undertake such an event. The event will take place at a date
and location that is mutually agreed to by the Recipient, AMC and Canada.
The AMC, Canada and the Recipient will have the opportunity to participate in
such events through a designated representative. Each participant will choose
its designated representative.
7.6 The conduct of all joint media events, announcements and products will follow
the Table of Precedence for Canada as outlined at the current Government of
Canada website.
7.7 All joint communications material related to media events and announcements
must be approved by Canada and recognize the funding of all contributors.
7.8 All joint communications material must reflect Canada's policy on official
languages and the federal identity program.
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8. Program Communications
8.1 The Recipient may include messaging in its own communications products
and activities with regards to the use of Funds.
8.2 When undertaking such activities, the Recipient will provide the opportunity for
AMO and Canada to participate and will recognize the funding of all
contributors.
8.3 Canada and AMO agree that they will not unreasonably restrict the Recipient
from: (1) using, for its own purposes, public communications products related
to the Funds prepared by Canada or AMO ("Communication Products") or,
(ii) linking to web -based Communication Products.
8.4 Notwithstanding Section 4 of Schedule E, Canada retains the right to meet its
obligations to communicate information to Canadians about the use of Funds
through communications products and activities.
9. Operational Communications
9.1 The Recipient is solely responsible for operational communications with
respect to the Eligible Projects, including but not limited to, calls for tender,
construction and public safety notices. Operational communications as
described above are not subject to the federal official languages policy.
9.2 The Recipient will share information promptly with Canada and AMO should
significant emerging media or stakeholder issues relating to an Eligible Project
arise. AMO will advise Recipients, when appropriate, about media inquiries
received by it concerning an Eligible Project and, when appropriate, other
signatories to the Canada-Ontario-AMO-Toronto Agreement will advise the
Recipient about media inquiries, concerning an Eligible Project.
10. Communicating Success Stories. The Recipient agrees to communicate with
Canada and AMO for the purposes of collaborating on communications activities and
produces including but not limited to Eligible Project success stories, Eligible Project
vignettes, and Eligible Project start -to -finish features.
11. Advertising Campaigns. Recognizing that advertising can be an effective means of
communication with the public, the Recipient may, at its own cost, organize an
advertising or public information campaign related to the use of the Funds or the
Eligible Projects. However such a campaign must respect the provisions of this
Agreement. In the event of such a campaign, the Recipient agrees to inform Canada
and AMO of its intention, and to inform them no less than 21 working days prior to the
campaign launch.
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