2009-039 Ontario Small Waterwoks Assistance Program - Part 2 (OSWAP-2)THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE
By-Law No. 2009-039
Being a By-Law to Authorize the Execution of the Ontario Small Waterworks
Assistance Program - Part 2 (OSWAP-2) Contribution Agreement Between
the Township of Oro-Medonte and Her Majesty The Queen in Right of Ontario
as Represented by The Minister of Agriculture, Food and Rural Affairs
WHEREAS the Municipal Act, 2001, S.Q. 2001, c.25, Section 224, as amended,
states that it is the role of Council to ensure that administrative practices and
procedures are in place to implement the decisions of Council;
AND WHEREAS the Council of the Corporation of the Township of Oro-Medonte
deems it expedient to enter into the Ontario Small Waterworks Assistance Program
- Part 2 (OSWAP-2) Contribution Agreement with Her Majesty The Queen in Right
of Ontario as Represented by The Minister of Agriculture, Food and Rural Affairs;
NOW THEREFORE the Council of the Township of Oro-Medonte hereby enacts as
follows:
THAT the Mayor and Clerk be authorized to execute the Ontario Small
Waterworks Assistance Program - Part 2 (OSWAP-2) Contribution
Agreement attached hereto as Schedule "A" and forming part of this By-Law.
2. THAT this by-law shall take effect on the final passing thereof.
BY-LAW READ A FIRST AND SECOND TIME THIS 25TH DAY OF MARCH, 2009.
BY-LAW READ A THIRD TIME AND FINALLY PASSED THIS 25TH DAY OF
MARCH, 2009.
THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE
Mayor, X9.5:' Hughes
Cirk, J. Douglas Irwin
Schedule "A" to By-Law No. 2009-039 JUN 0 4 2009
ORO-MEDONTE
ONTARIO SMALL WATERWORKS ASSISTANCE PROGRAM PART 2 ("OSWAP-2")
Ministry of Agriculture,
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
as represented by the Minister of Agriculture, Food and Rural Affairs
(referred to herein as the "Ministry")
AN D: THE CORPORATION OF THE TOWNSHIP OF ORO - MEDONTE
(referred to herein as the "Recipient")
WHEREAS many small communities face unique challenges with the financial sustainahility and
affordability of Drinking Water Systems;
AND WHEREAS the Government of Ontario is investing in Drinking Water Systems in small
municipalities or Local Services Boards (LSBs) in Ontario;
AND WHEREAS the purpose of OSWAP-2 is to address immediate operating pressures on
Drinking Water Systems in municipalities or LSBs in Ontario serving 1,001 to 5000 residents;
AND WHEREAS municipalities or LSBs receiving OSWAP-2 funding may apply it to one or
more of four focus areas: planning; direct costs associated with the operation of Drinking Water
Systems; regulatory compliance; or retaining expertise to improve Drinking Water Systems;
AND WHEREAS municipalities or LSBs receiving OSWAP-2 funding may not apply it to capital
costs to construct or to improve Drinking Water Systems;
AND WHEREAS municipalities or LSBs receiving OSWAP-2 funding must undertake one or
more specified project(s) for improving system management and operations;
AND WHEREAS this Agreement establishes the terms and conditions applicable to OSWAP-2
funding;
NOW THEREFORE in consideration of the mutual covenants and agreements herein contained
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties covenant and agree as follows:
THIS AGREEMENT made in triplicate as of the 264 day of 2009.
BETWEEN:
OSWAP-2 Contribution Agreement
This Agreement, including:
Schedule "A" - General Terms and Conditions
Schedule "B" - Operational Overview and Budget
Schedule "C" - Eligible & Ineligible Costs
Schedule "D" - Additional Provisions
Schedule "E" - Report
constitutes the entire agreement between the parties with respect to the subject matter
contained in this Agreement and supersedes all prior oral or written representations and
agreements.
IN WITNESS WHEREOF, the Ministry and the Recipient have respectively executed and
delivered this Agreement on the date set out above.
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
as represented by the Minister of Agriculture, Food and Rural Affairs
by:
Name: 'Ybe Honourable Leona Dombr sky Date-
Title: Minister of Agriculture, Food and Rural Affairs
THE CORPORATION OF THE TOWNSHIP OF ORO - MEDONTE:
by:
Na Ha ugh s
Title: Ma
Affix
Corporate
Seal
Nary : Doug/l An
Title: Direc of Corporate Services/Clerk
I/we have authority to bind the Recipient
V c~' ~9 . 0-0(y
Date
Date
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OSWAP-2 Contribution Agreement
SCHEDULE "A"
GENERAL TERMS AND CONDITIONS
SECTION 1
DEFINITIONS AND INTERPRETATION
1.1 Definitions. When used in this Agreement, including the cover and execution pages
and all of the schedules, the following terms shall have the meanings ascribed to them
below unless the subject matter or context is inconsistent therewith:
"Adjust the Financial Assistance" means an increase, reduction or termination of the amount
of the Financial Assistance for the Operational Priority of the Recipient under the OSWAP-2
Program, or any other provincial program(s) or initiative(s), either current or future, as the
Ministry may determine and which may require repayment by the Recipient of some or all of the
Financial Assistance in an amount to be determined by the Ministry and within a period
specified by the Ministry, and "Adjustments to the Financial Assistance" shall have a similar
meaning.
"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.
"Applicable Laws" means applicable federal, provincial and municipal laws, all rules,:,
regulations, by-laws, notices, orders and approvals.
"Budget" means the budget set out in Schedule "B of this Agreement.
"Business Day" means any day on which Government of Ontario offices generally are open for
business in the Province of Ontario.
"Consultant" means any consultant, engineer, contractor or other provider of goods or
services, as the case may be, retained or selected by the Recipient in relation to the Operational
Priority.
"Contract" means a contract between a Recipient and a third party at arm's length whereby the
latter agrees to provide a product or service in relation to the Operational Priority.
"Documentation" includes but is not limited to invoices, receipts, timesheets, quotations,
estimates, work authorizations, payroll records, tenders, proposals, payment certificates,
correspondence, memoranda, contracts, amendments thereto and other records of costs,
expenses and activities related to the Operational Priority.
"Drinking Water System" means one or more publicly owned, residential drinking water
systems, as the Ministry may determine.
"Eligible Cost" means those costs so described in Schedule "C" of this Agreement.
"End of Financial Assistance Date" means March 31, 2012.
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OSWAP-2 Contribution Agreement
"Event of Default" has the meaning given to it in Section 14.1 of Schedule "A" of this
Agreement.
"Expiration Date" means March 31, 2013.
"Financial Assistance" means the funds provided by the Ministry to the Recipient pursuant to
this Agreement.
"Fiscal Year" means the fiscal year of the Recipient.
"Generally Accepted Accounting Principles" means Canadian Generally Accepted
Accounting Principles as adopted by the Canadian Institute of Chartered Accountants.
"Government of Ontario" means Her Majesty the Queen in Right of Ontario.
"Indemnified Parties" means Her Majesty the Queen in Right of Ontario, Her Ministers,
appointees, directors, officers, employees and agents.
"Ineligible Costs" means those costs so described in Schedule "C" of this Agreement.
"Maximum Financial Assistance" means the utmost amount of Financial Assistance provided
by the Ministry to the Recipient during the Term of this Agreement, subject to any Adjustments
to the Financial Assistance.
"Ministry" means the Ministry of Agriculture, Food and Rural Affairs or such other Ministry as
may be responsible for the operation and administration of OSWAP-2.
"Operational Priority" means the purposes to which the Recipient shall apply the Financial
Assistance as described in Schedule "B" hereto.
"OSWAP-2" means the Ontario Small Waterworks Assistance Program Part 2.
"Recipient" has the meaning given to it on the cover page of this Agreement.
"Report" has the meaning given to it in Section 6.1 of Schedule "A" of this Agreement.
"Term" has the meaning given to it in Section 2.1 of Schedule "A" of this Agreement.
1.2 Herein, etc. The words "herein", "hereof' and "hereunder' and other words of similar
import refer to this Agreement as a whole and not to any particular schedule, article,
section, paragraph or other subdivision of this Agreement. The words"include",
"includes" and "including" shall not denote an exhaustive list.
1.3 Currency. Any reference to currency is to Canadian currency and any amount
advanced, paid or calculated is to be advanced, paid or calculated in Canadian currency.
1.4 Statutes. Any reference to a statute is to such statute and to the regulations made
pursuant to such statute as such statute and regulations may at any time be amended or
modified and in effect and to any statute or regulations that may be passed that have the
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OSWAP-2 Contribution Agreement
effect of supplementing or superseding such statute or regulations.
1.5 Gender, singular, etc. Words importing the masculine gender include the feminine or
neuter gender and words in the singular include the plural, and vice versa.
1.6 Ministry Approvals. Any reference to, or requirement for, the approval of the Ministry
in this Agreement or in any schedule hereto shall be deemed to require the prior and
express written approval of the Ministry.
SECTION 2
TERM OF AGREEMENT
2.1 Term. Subject to any extension or termination of this Agreement and the survival of any
of the provisions of this Agreement pursuant to the provisions contained herein, this
Agreement shall be in effect from the date set out on the first page of this Agreement, up
to and including the Expiration Date.
2.2 End of Financial Assistance Date. Notwithstanding anything in this Agreement, the
Ministry shall not be obligated to provide Financial Assistance pursuant to this
Agreement after the End of Financial Assistance Date.
SECTION 3
ELIGIBLE COSTS
3.1 Eligible Costs. The Recipient shall use the Financial Assistance for costs and
expenses related to the Operational Priority in accordance with Schedule "B" and
Schedule "C", unless otherwise expressly approved in writing by the Ministry.
3.2 Discretion of Ministry. Subject to Section 3.1 of Schedule "A", the Ministry may
determine in its sole discretion whether the Recipient may use the Financial Assistance
for any cost or expense not listed in Schedule "B" or Schedule "C" to this Agreement. In
the event that the Recipient seeks approval from the Ministry for the use of Financial
Assistance for any cost or expense not listed in Schedule "B" or Schedule "C" to this
Agreement, the Recipient shall submit a written request to the Ministry with its Report
and in advance of any such use of the Financial Assistance.
3.3 Retention of Receipts. The Recipient shall retain all Documentation, related to the
Operational Priority and the Recipient shall maintain and make available to the Ministry
upon the Ministry's request such Documentation for audit or such other purposes as the
Ministry may require for a period of six years from the conclusion of the term of this
Agreement.
3.4 Ineligible Costs. Notwithstanding any other provision of this Agreement, the Recipient
shall not use the Financial Assistance for any purpose that is specifically excluded from
the Operational Priority in accordance with Schedule "B" or is ineligible for Financial
Assistance pursuant to Schedule "C" of this Agreement ("Ineligible Costs").
3.5 Clarification. For clarity, the Recipient hereby expressly acknowledges and agrees that
the inclusion of a cost or expense in Schedule "B" does not necessarily mean that such
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OSWAP-2 Contribution Agreement
cost or expense is an Eligible Cost. Where there is a conflict between the Schedule "B",
s Section 3 (Eligible Costs) and Schedule "C", the provisions of this Section 3 (Eligible
Costs) shall prevail.
SECTION 4
FINANCIAL ASSISTANCE
4.1 Payment & Use of Financial Assistance. Subject to the terms and conditions of this
Agreement, the Ministry shall provide Financial Assistance on an annual basis for the
Term of this Agreement to the Recipient in the amounts set out in Schedule "B". The
Recipient shall use the Financial Assistance that it receives in a Fiscal Year in that Fiscal
Year. In the event that the Recipient does not use all of the Financial Assistance that
the Recipient receives in a Fiscal Year, the Recipient may request in writing from the
Ministry as part of the Recipient's Report approval to use the Financial Assistance in the
next Fiscal Year, provided that all Financial Assistance shall be used by December 31,
2012.
4.2 Funds advanced. The Financial Assistance, including all interest earned thereon, shall
be deemed to be the property of the Ministry. The Recipient shall hold the Financial
Assistance in trust for the Ministry in an interest bearing account pending payment of
Eligible Costs during a Fiscal Year. The Recipient shall use any interest accruing on the
Financial Assistance for Eligible Costs and such interest shall be added to and deemed
to be part of the Maximum Financial Assistance.
4.3 Maximum Financial Assistance. In any event, the Ministry shall not provide Financial
Assistance to the Recipient that is greater than the sum of all Financial Assistance as set
out in Schedule "B" hereto, inclusive of interest accrued in accordance with Section 4.2
of Schedule "A".
4.4 Notice to the Ministry. The Recipient shall immediately notify the Ministry if the
Recipient becomes aware of information, errors, omissions or other circumstances that
affect the Operational Priority or the Financial Assistance.
4.5 Reduction or Termination of Financial Assistance. The Ministry may reduce or
terminate the Financial Assistance where, in the Ministry's sole discretion:
(a) the Recipient's actual costs for the Drinking Water System in any Fiscal
Year of the Term of the Agreement are less than the Financial Assistance
that the Ministry provides for that Fiscal Year;
(b) the Recipient notifies the Ministry that the Recipient does not intend to
carry out, perform or achieve the Operational Priority in whole or in part
as specified in Schedule "B"; or
(c) new information, errors, omissions or other circumstances affect the
Operational Priority or Financial Assistance.
4.6 Withholding payment. Regardless of any other remedy available to the Ministry, the
Ministry may, in its sole discretion, withhold any payment of Financial Assistance where
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OSWAP-2 Contribution Agreement
the Recipient is in default of any provisions of this Agreement or any Applicable Laws,
including but not limited to the Recipient's obligation to provide any Report or other
information to the Ministry.
4.7 Insufficient funds provided by the Legislature. Despite the preceding paragraphs
and pursuant to the provisions of the Financial Administration Act, R.S.O. 1990, c. F.12,
as amended, if the Ministry does not receive the necessary appropriation from the
Ontario Legislature for any payment the Ministry is obligated to make under the
Agreement, the Ministry shall not be obligated to make the payment.
SECTION 5
USE OF FINANCIAL ASSISTANCE
5.1 Recipient fully responsible. The Recipient shall be fully responsible for undertaking,
implementing and completing the Operational Priority as described in Schedule "B".
Where the Operational Priority is dependent on Consultants, the Recipient shall be fully
responsible for obtaining any contracts, guarantees, security or other assurances that it
may require from any Consultant in relation to the Operational Priority.
5.2 Ministry not responsible for implementation. The Ministry shall not be responsible in
any way whatsoever for undertaking, implementing or completing the Operational
Priority, the operation of the Drinking Water System or the provision of drinking water.
5.3 Ministry not responsible for costs, etc. The Ministry shall not be responsible for any
claims, proceedings or judgments arising from any matter in relation to the Drinking
"Water System, Operational Priority or the provision of Financial Assistance to the
Recipient.
5.4 Behaviour of Recipient. The Recipient shall carry out the Operational Priority in an
economical and businesslike manner, with appropriate due diligence, in accordance with
this Agreement and in particular, but without limitation, in accordance with Schedule "B".
5.5 Policies. The Ministry may from time to time establish and, upon receipt of notice, the
Recipient shall comply with policies and processes with respect to OSWAP-2, including
but not limited to the use of Financial Assistance.
5.6 Competitive process. The Recipient shall acquire all goods and services required for
the Operational Priority through transparent, competitive processes that promote the
best value for money.
5.7 Trade Agreements. If the Recipient is subject to any provincial or federal trade
agreements to which the Government of Ontario is a party, the Recipient shall comply
with the applicable requirements of such trade agreements. In particular, and without
limitation, if the Recipient is subject to Annex 502.4 of the Agreement on Internal Trade,
the Recipient shall comply with all of the applicable requirements of that Annex. In the
event of any conflict between the requirements of Sections 5.6 of Schedule "A" of this
Agreement and the requirements of this Section 5.7, the requirements in this Section 5.7
shall prevail.
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OSWAP-2 Contribution Agreement
5.8 Contracts. In entering into any Contract in relation to the Operational Priority, the
Recipient shall:
a) ensure that terms and conditions are consistent, and do not conflict, with this
Agreement;
b) incorporate relevant provisions of this Agreement;
C) conform to all policies and procedures issued by the Ministry for the OSWAP-2
Program;
d) subject to Section 5.5, 5.6 and 5.7 of Schedule "A" of this Agreement, award and
manage Contracts in a way that is transparent, competitive and consistent with
value for money principles
e) require that the parties thereto comply with all Applicable Laws; and
f) authorize the Ministry to gather data, perform audits and monitor the Operational
Priority as the Ministry in its sole discretion may determine.
SECTION 6
REPORTING REQUIREMENTS .
6.1 Reports. The Recipient shall submit a Report in the form set out in Schedule "E" or such other
form as the Ministry may require, together with all supporting Documentation, for the
Ministry's approval, cost review and audit on or before thirty days following the end of
the Fiscal Year in which the Ministry provides Financial Assistance to the Recipient or
such later date as the Ministry may in writing allow. The Report shall include:
(a) A description of the Eligible Costs related to the Operational Priority;
(b) an explanation and accounting of any Financial Assistance that was not
expended in the Fiscal Year for which the Financial Assistance was provided;
(c) details of any changes in the Operational Priority anticipated in the upcoming
Fiscal Year; and
(d) such further information as the Ministry may from time to time advise.
6.2 Additional Reports. Notwithstanding Section 6.1 (Reports), the Recipient shall submit,
upon request by the Ministry, any additional Documentation or report that the Ministry
may require from time to time.
SECTION 7
RECORDS AND AUDIT
7.1 Separate records. The Recipient shall maintain separate records for the Operational
Priority and keep all records and Documentation for six (6) years from the end of the
Term of this Agreement. Upon the Ministry's request, the Recipient shall submit to the
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OSWAP-2 Contribution Agreement
Ministry all records and Documentation relating to the Operational Priority. The
Recipient shall maintain all records and Documentation in accordance with good
business practices including but not limited to Generally Accepted Accounting Principles
as applicable.
7.2 Provide records to Ministry. The Recipient shall provide to the Ministry, upon request
and at the Recipient's expense (including but not limited to photocopying, electronic
media, transportation and postage, associated staff time, information retrieval and other
office expenses), all records and Documentation of the Recipient and its Consultants
relating to the Operational Priority or the OSWAP-2 Program, or any other provincial
program(s), as may be required by the Ministry. The Recipient shall provide such
material to the Ministry and other ministries of the Government of Ontario as may be
requested from time to time, all in a form and manner satisfactory to the Ministry and
other ministries of the Government of Ontario, as applicable.
7.3 External auditor. The Ministry may require the assistance of an external auditor to
carry out an audit of records and Documentation referred to in Sections 7.1 and 7.2 of
Schedule "A" of this Agreement. If so, the Recipient shall, upon the Ministry's request,
retain an external auditor acceptable to the Ministry. If the Ministry reasonably believes
that a Report or the Documentation contains material inaccuracies, then the external
auditor shall be retained at the Recipient's sole expense. Otherwise, in the Ministry's
sole discretion, the Ministry and the Recipient may share the cost of the external auditor.
..The Recipient shall require any auditor who conducts an audit pursuant to this section of
the Agreement or otherwise to provide a copy of the audit report to the Ministry for its
consideration at the same time that the audit report is given to the Recipient.
7.4 Review. The Recipient shall allow the Ministry, its agents and employees and the
Ontario Provincial Auditor's Office access to the Recipient's staff and entry to the
Recipient's premises at all reasonable times to: (i) inspect or review anything related to
the Operational Priority; or (ii) perform any cost review, audit or assessment of the
Operational Priority as the Ministry may require.
7.5 Information condition precedent for payment. The Ministry may, in its sole
discretion, require the Recipient to comply with any requirement of this Section 7
(Records and Audit) as a condition precedent to any payment in relation to the
Operational Priority or any other Operational Priority(ies) of the Recipient under the
OSWAP-2 Program, or any other provincial program(s) either current or future, and if the
Recipient fails to comply with any requirement of this Section 7 (Records and Audit),
notwithstanding any other provision of this Agreement, the Ministry may, in its sole
discretion, reduce or terminate the Financial Assistance for the Operational Priority.
SECTION 8
OVERPAYMENT
8.1 Repayment of Financial Assistance. The Recipient shall repay to the Ministry, upon
receipt of a written demand and within a period specified by the Ministry, that portion of
Financial Assistance that:
(a) exceeds the Maximum Financial Assistance, as the Ministry may determine;
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OSWAP-2 Contribution Agreement
(b) is used for a purpose other than that stated in or allowed by the terms of this
Agreement; or
(c) is not used by the earlier of December 31St of the year following the Fiscal Year in
which the Financial Assistance is provided or December 31, 2012;
Any Financial Assistance paid by the Ministry to the Recipient shall not be construed as
a final determination of the Maximum Financial Assistance until the Ministry has received
and approved the Recipient's Final Report.
8.2 Deduction of overpayment. The Ministry may deduct any overpayment of Financial
Assistance in a Fiscal Year pursuant to Section 8.1 of Schedule "A" from any Financial
Assistance payable in a subsequent Fiscal Year or on any other Operational Priority of
the Recipient under the OSWAP-2 Program or any other provincial program(s) either
current or future. Any overpayment made by the Ministry or any other ministry of the
Government of Ontario under the OSWAP-2 Program or any other provincial program(s)
either current or future may in turn be deducted from any Financial Assistance payable
for the Operational Priority.
8.3 Interest on overpayment. The Ministry reserves the right to demand interest on any
overpayment of Financial Assistance owing by the Recipient under the terms of this
Agreement at the then current interest rate charged by the Government of Ontario on
accounts receivable. The Recipient shall pay the amount of interest owing upon receipt.
of a written demand and within the period specified by the Ministry.
SECTION 9
INSURANCE
9.1 Insurance. The Recipient represents and warrants that it has, and shall maintain in full
force and effect for the term of the Agreement, at its own cost and expense, with insurers
having a secure A.M. Best rating of B+ or greater, or the equivalent, all the necessary
and appropriate insurance that a prudent person carrying out a project similar to the
Project would maintain, including commercial general liability insurance on an
occurrence basis for third party bodily injury, personal injury and property damage, to an
inclusive limit of not less than two million dollars ($2,000,000.00) per occurrence. The
commercial general liability insurance policy shall include the following:
(i) the Indemnified Parties as additional insureds with respect to liability
arising in the course of performance of the Recipient's obligations under,
or otherwise in connection with, the Agreement;
(ii) a cross liability clause;
(iii) contractual liability coverage; and
(vii) a 30 day written notice of cancellation, termination or material change.
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OSWAP-2 Contribution Agreement
9.2 Certificates of Insurance. The Recipient shall provide the Ministry with certificates of
insurance, or other proof as may be requested by the Ministry, that confirms the
insurance coverage as provided for in Section 9.1. Upon the request of the Ministry, the
Recipient shall make available to the Ministry a copy of each insurance policy.
SECTION 10
INDEMNITY
10.1 Ministry not liable. In no event shall the Ministry be liable for:
a) any bodily injury, death or property damage to the Recipient, its employees,
agents, or Consultants or for any claim, demand or action by any third party
against the Recipient, its employees, agents, or Consultants, arising out of or in
any way related to this Agreement or the Operational Priority; nor
b) any incidental, indirect, special or consequential damages, or any loss of use,
revenue or profit to the Recipient, its employees, agents, or Consultants arising
out of or in any way related to this Agreement or the Operational Priority.
10.2 Recipient to indemnify. The Recipient agrees to indemnify and hold harmless Her
Majesty the Queen in right of Ontario, Her appointees, directors, officers, employees and
agents from and against all suits, judgments, claims, demands, expenses, actions,
causes of action and losses (including, without limitation, reasonable legal expenses)
and for any and all liability for damages to property and injury to persons (including
death) which Her Majesty the Queen in Right of Ontario, Her appointees, directors,
officers, employees and agents may incur, otherwise than by reason of their own
negligence or wilful misconduct, as a result of or arising out of or in relation to: (a) the
performance of this Agreement or any breach of the terms of this Agreement by the
Recipient, its officers, servants, employees, agents and Consultants, or by a third party,
and any of its officers, employees, servants or agents; (b) the ongoing provision,
operation, maintenance and repair of the Recipient's Drinking Water System; or (c) any
omission or other wilful or negligent act of the Recipient, a third party, or their respective
employees, officers, servants or agents.
10.3 Further Indemnity. The Recipient further agrees to indemnify and hold harmless Her
Majesty the Queen in right of Ontario, Her appointees, directors, officers, employees and
agents, for any incidental, indirect, special or consequential damages, or any loss of use,
revenue or profit, which Her Majesty the Queen in right of Ontario, Her appointees,
directors, officers, employees and agents may incur, otherwise than by reason of their own
negligence or wilful misconduct, as a result of or arising out of or in relation to: (a) the
performance of this Agreement or any breach of the terms of this Agreement by the
Recipient, its officers, servants, employees and agents, or by a third party, and any of its
officers, employees, servants or agents; (b) the ongoing provision, operation, maintenance
and repair of the Recipient's Drinking Water System; or (c) any omission or other wilful or
negligent act of the Recipient, a third party, their respective employees, officers, servants or
agents.
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OSWAP-2 Contribution Agreement
SECTION 11
CONFLICT OF INTEREST AND CONFIDENTIALITY
11.1 No conflict of interest. The Recipient and its Consultants and any of their respective
advisors, partners, directors, officers, employees, agents and volunteers shall not
engage in any activity or provide any services where such activity or the provision of
such services creates a conflict of interest (actually or potentially in the sole opinion of
the Ministry) with the provision of services under this Agreement. The Recipient
acknowledges and agrees that it shall be a conflict of interest for the Recipient, its
Consultants and any of their respective advisors, partners, directors, officers,
employees, agents and volunteers to use confidential information of Her Majesty the
Queen in right of Ontario that is relevant to the Operational Priority or otherwise where
the Ministry has not expressly authorized such use in writing. For greater certainty,
and without limiting the generality of the foregoing, a conflict of interest includes a
situation where anyone associated with the Recipient is able to benefit financially from
the Operational Priority or where such a person owns or has an interest in an
organization that is carrying out work related to the Operational Priority.
11.2 Disclose potential conflict of interest. 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 Freedom of Information and Protection of Privacy Act. The Recipient
acknowledges that the Ministry is bound by the provisions of the Freedom of
Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as amended.
SECTION 12
COMMUNICATION AND RECOGNITION
12.1 Acknowledge the support of the Ministry. The Recipients shall acknowledge the
support of the Ministry and OSWAP-2 in such form as the Ministry may approve.
12.2 OSWAP-2 may publicize information. The Recipient acknowledges and agrees that
the Ministry may publicize information regarding OSWAP-2 and the Recipient,
including but not limited to the Recipient's name, description of the Recipient's
Operational Priority and total amount of Financial Assistance.
12.3 Recipients views do not necessarily represent those of the Ministry. The
Recipients shall indicate in any acknowledgement pursuant to Section 12.1 of
Schedule "A" that the views expressed therein are the views of the Recipients and do
not necessarily reflect those of the Ministry or OSWAP-2.
SECTION 13
COVENANTS, REPRESENTATIONS AND WARRANTIES
13.1 Covenants, representations and warranties. The Recipient covenants, represents
and warrants to the Ministry, and acknowledges and agrees that the Ministry relies on
the Recipient's covenants, representations and warranties contained herein in entering
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OSWAP-2 Contribution Agreement
into this Agreement and providing Financial Assistance, that:
a) It has authority and any necessary approval to enter into this Agreement and to carry
out its terms;
b) it validly exists as a legal entity with full power to perform and observe all of the terms
and conditions of this Agreement;
c) where applicable, it has passed any by-laws or resolutions required to undertake the
Operational Priority;
d) it has the experience and ability to carry out the Operational Priority;
e) other than the Financial Assistance being provided pursuant to this Agreement, the
Recipient has not and will not use any funds received from Her Majesty the Queen in
Right of Ontario or a Crown Agency towards any aspect of the Operational Priority;
f) all information provided in the Recipient's Expression of Interest is and remains true,
correct and complete in every respect; and
g) it provides its residential Drinking Water System(s) to a total population of 1,001 to
5000 residents.
13.2 Representations and warranties true condition precedent for payment. Upon the
Ministry's request, the Recipient shall provide the Ministry with proof of the covenants,
representations and warranties referred to in this Section 13 Covenants,
Representations and Warranties. It is a condition precedent to any payment under this
Agreement that the covenants, representations and warranties under Section 13.1 of
Schedule "A" are true and correct at the time of any payment of Financial Assistance
and that the Recipient is not in default any terms or conditions of this Agreement. Where
the Recipient's covenants, representations and warranties are not true and correct, the
Ministry may, in its sole discretion, reduce or terminate the Financial Assistance for the
Operational Priority.
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0SWAP-2 Contribution Agreement
SECTION 14
DEFAULT, ENFORCEMENT AND TERMINATION
14.1 Event of Default. Each and every one of the following events is an "Event of Default":
a) if in the opinion of the Ministry, the Recipient fails to comply with any term or
condition contained in this Agreement;
b) if in the opinion of the Ministry any covenant, representation or warranty made by the
Recipient in this Agreement is materially untrue in any respect;
c) if an order or resolution is made or passed for the winding up, liquidation or
dissolution of the Recipient or the Recipient is otherwise dissolved
or ceases to carry on operations;
d) if the Recipient uses any of the Financial Assistance for a purpose not authorized by
this Agreement, without the prior written consent of the Ministry;
e) if the Recipient admits in writing its inability to pay its debts generally as they become
due, voluntarily suspends transactions of its usual business, becomes insolvent,
bankrupt, makes an assignment for the benefit of its creditors, or a receiver or
manager, court appointed or otherwise, is appointed for its assets or if the Recipient
takes the benefit of any statute from time to time in force relating to bankrupts or
insolvent debtors;
f) if in the opinion of the Ministry, a material adverse change occurs such that the
viability of the Recipient as a going concern is threatened;
g) if in the opinion of the Ministry, the Recipient ceases to own, provide or operate a
Drinking Water System;
h) if the Recipient is 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 sole discretion of the Ministry, are beyond the control of the Recipient;
i) if the Recipient has submitted false or misleading information or a false or
misleading Report to the Ministry;
j) if the Recipient and/or any of its Consultants and/or any of their respective advisors,
partners, directors, officers, employees, agents and volunteers has breached the
requirements of Section 11 (Conflict of Interest and Confidentiality) of Schedule "A";
or;
14.2 Waiver. The Ministry may, at any time, waive any Event of Default provided that no
such waiver shall extend to, or be taken in any manner whatsoever to affect, any
subsequent Event of Default or the Ministry's 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.
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OSWAP-2 Contribution Agreement
14.3 Remedies on default. Notwithstanding any other rights which the Ministry may have
under this Agreement or at law, if an Event of Default has occurred, the Ministry shall
have the following remedies, provided only that in the case of an Event of Default which,
in the opinion of the Ministry in its sole discretion, is curable, the Ministry has first given
written notice of the Event of Default to the Recipient and the Recipient has failed to
correct the Event of Default within 30 days or such longer period of time as the Ministry
may consent to in writing:
a) the Ministry shall have no further obligation to provide any Financial Assistance;
b) the Ministry may, at its option, terminate this Agreement immediately and may, in its
sole discretion, reduce or terminate the Financial Assistance. The Recipient shall
immediately pay to the Ministry any Financial Assistance that the Recipient has received
from the Ministry but has not expended as of the date of termination together with
interest on the Financial Assistance at the then-current interest rate charged by the
Government of Ontario on accounts receivable from the date that the Ministry paid the
Financial Assistance to the Recipient for the Fiscal Year in which termination occurs to
the date of termination; and
c) the Ministry may avail itself of any other legal remedy.
14.4 Additional remedies. In addition to the remedies described in Section 14.3 of Schedule
"A", the Ministry may commence any legal action or proceeding 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 other rights or remedies
otherwise available to the Ministry.
14.5 Termination without cause. Notwithstanding anything other provision contained
herein, the Ministry reserves the right to terminate this Agreement without cause upon
such conditions as the Ministry may require, with a minimum of thirty (30) days written
notice to the Recipient. If the Ministry terminates this Agreement prior to its expiration,
the Ministry, subject to all of the Ministry's rights under this Agreement, including, without
limitation, the Ministry's right to make Adjustments to the Financial Assistance prior to its
expiration, shall only be responsible for the payment of Financial Assistance in the then
current Fiscal Year.
SECTION 15
NOTICE
15.1 Notice. Any demand, notice or communication to be made or given hereunder shall be
in writing and may be made or given by personal delivery or mailed by first class
registered mail, postage prepaid or by transmittal by facsimile, telecopy, email or other
electronic means of communication addressed to the respective parties as follows at the
addresses set out in Schedule "D" attached hereto or to such other person, address,
facsimile number, telecopy number or email address as either party may from time to
time notify the other in accordance with this Section. Any demand, notice or
communication made or given by personal delivery shall be conclusively deemed to
have been given on the day of actual delivery thereof. Any demand, notice or
communication made or given by facsimile, email or other electronic means of
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0SWAP-2 Contribution Agreement
communication, if made or given at a time when it would be received by the recipient
during its normal business hours on a Business Day, shall be deemed to be received at
the time it is sent; otherwise, such electronic communication shall be deemed to be
received on the first Business Day following the transmittal thereof. Any demand, notice
or communication mailed by registered mail shall be deemed to have been received on
the third Business Day following the day on which it was mailed.
15.2 Representatives. The individuals identified pursuant to Section 15.1 above will, in the
first instance, act as the Ministry's or the Recipient's representative, as the case may be,
for the purpose of this Agreement.
SECTION 16
CONTRIBUTION ONLY
16.1 Contribution. This Agreement is a contract for financial assistance only and nothing in
it or done pursuant to it, shall be construed as, constitute or deem the Recipient to be
the Ministry's agent, employee, partner or joint venturer.
SECTION 17
MISCELLANEOUS
17.1 Terms binding. The Recipient shall take all reasonable measures to ensure that its
officers, directors, partners, employees, agents and Consultants shall be bound to
observe all of the terms and conditions of this Agreement, including, but not limited to all
covenants, representations and warranties set out herein.
17.2 Time of the essence. In the performance and observance of the terms and conditions
of this Agreement, time is of the essence and no extension or variation of this
Agreement shall operate as a waiver of this provision. The Ministry shall not be liable for
any liquidated damages as a result of working days extensions.
17.3 Successors and assigns. This Agreement shall endure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors, administrators,
successors and permitted assigns.
17.4 No waiver. 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.
17.5 Division of Agreement. The division of this Agreement into schedules, articles,
sections, clauses, paragraphs and the insertion of headings are for the convenience of
reference only and shall not affect the construction or interpretation of this Agreement.
17.6 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.
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OSWAP-2 Contribution Agreement
17.7 Survival. The following schedules, sections and provisions of this Agreement shall
survive the expiration or early termination hereof: Sections 4.2, 4.4 and 4.5 (Financial
Assistance), Section 6 (Reporting Requirements), Section 7 (Records and Audit),
Section 8 (Overpayment), Section 10 (Indemnity), Section 11 (Conflict of Interest and
Confidentiality), Section 12 (Communication and Recognition), Section 13 (Covenants,
Representations and Warranties) and Section 14 (Default, Enforcement and
Termination) of Schedule "A".
17.8 No assignment. This Agreement shall not be assigned by the Recipient. The Ministry
may assign this Agreement on written notice to the Recipient.
17.9 No amendment. This Agreement shall not be varied or amended except by agreement
in writing, dated and signed on behalf of the Ministry and the Recipient.
17.10 Consultants. The Ministry acknowledges that, in connection with carrying out the
Operational Priority, the Recipient may engage one or more Consultants, employees or
agents. The Recipient shall have the sole authority and responsibility for such
Consultants, employees, agents, including their hiring and termination. The Recipient
acknowledges and agrees that the Recipient shall be responsible for all acts and actions
of the Recipient's Consultants, employees and agents and that all such acts and actions
shall be treated as actions of the Recipient for the purposes of this Agreement.
17.11 Cooperation. The Ministry and the Recipient agree to cooperate with one another and
will be frank, candid and timely when dealing with one another and will endeavour to
facilitate the implementation of this Agreement.
17.12 Data. The Recipient agrees that the Ministry may, in its sole discretion, collect, use and
disclose any data required under this Agreement, including but not limited to data related
to water.
17.13 Priority. Where there is a conflict between one or more of the schedules of this
Agreement, the following order of priority shall apply: Schedule "A", Schedule "C",
Schedule "B" and all other schedules.
- END OF GENERAL TERMS AND CONDITIONS -
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OSWAP-2 Contribution Agreement
SCHEDULE "B"
OSWAP-2
RECIPIENT'S OPERATIONAL PRIORITY
DESCRIPTION OF OPERATIONAL PRIORITY:
The Township of Oro - Medonte will incur expenditures in the operation of their Drinking Water System
related to direct costs, regulatory compliance, undertaking a leakage audit/maintenance to reduce leakage,
improving energy efficiency of water facilities, a water meter program, operator training, integrating
administration with other municipal departments/local utilities, implementing shared service agreements with
neighbouring communities, and/or preparing an asset management plan/implementing broader asset
management practices.
FINANCIAL ASSISTANCE
Ontario's Maximum Financial Assistance: $100,000.00
Proposed Payment Schedule
Calendar Year
Financial Assistance
2009
$25,000.00
2010
$25,000.00
2011
$25,000.00
2012
$25,000.00
Total
$100,000.00
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OSWAP-2 Contribution Agreement
SCHEDULE "C"
ELIGIBLE AND INELIGIBLE COSTS
CA ELIGIBLE COSTS
C.1.1 The Recipient shall use Financial Assistance for costs that, in the opinion of the Ministry, are:
a) properly and reasonably incurred by the Recipient and no other person; and
b) necessary for the implementation of the Operational Priority as described in Schedule "B".
C.1.2 Subject to Section C.1.1 of the Schedule, the Recipient shall use all Financial Assistance for costs
directly related to operating its Drinking Water System associated with planning, direct costs,
regulatory compliance and retaining expertise. Eligible Costs include but are not limited to the
following:
a) Costs incurred by the Recipient on or after January 1, 2009 but before December 31, 2012;
b) Costs incurred by the Recipient for employees, professionals and technical personnel as well as
those for consultants and contractors specifically engaged to operate the Recipient's Drinking
Water System, including wages and benefits, overhead and administrative costs;
c) Materials, supplies, utilities and costs of testing and sampling incurred by the Recipient directly
related to the operation of the Recipient's Drinking Water System;
d) Costs for software, hardware and any other IT products incurred by the Recipient to operate its
Drinking Water System; I-
e) Staff training costs incurred by the Recipient, including training registration fees, travel expenses
(airline/train ticket, car rental including the cost of gasoline, mileage if staff members' own car is
used, hotel stays and meals (excluding alcohol) while attending a conference/seminar) and any
materials that may be required to be purchased in advance of attending a training session, such
as books and/or training manuals specifically requested by the training seminar organizer,
related to the operation of the Recipient's Drinking Water System;
f) Costs incurred by the Recipient directly related to data collection, modelling, research and data
management for the Recipient's Drinking Water System; and
g) Any other costs as approved by the Ministry.
C.2 INELIGIBLE COSTS
C.2.1. Notwithstanding any other provision in this Agreement, Financial Assistance shall not be used for
any of the following:
a) Any cost or expense incurred by the Recipient before January 1, 2009;
b) Any cost or expense incurred by the Recipient after December 31, 2012;
c) Lowering water rates;
d) Supporting municipal / LSB services, other than those related to the operation of the Recipient's
Drinking Water System;
e) Salaries or other benefits of any employees of the Recipient that are not related to the operation
of its Drinking Water System;
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0SWAP-2 Contribution Agreement
f) Any travel, gasoline, meal, hotel, material, education and other costs borne by the Recipient that
are not directly related to the operation of the Drinking Water System;
g) Personal expenses and alcohol;
h) Taxes for which the Recipient or a third party is eligible for a tax rebate and all other costs or
expenses eligible for rebates (e.g., GST);
i) Operating costs of the Recipient's Drinking Water System funded by any other Government of
Ontario grant program;
j) Financing charges and interest costs on debt;
k) Capital costs, including costs of capital leasing of equipment by the Recipient;
1) Legal fees; or
m) Matching any funding or grant provided under any Government of Ontario program, including but
not limited to the Canada-Ontario Municipal Rural Infrastructure Fund - Asset Management
Program (COMRIF - AMP).
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OSWAP-2 Contribution Agreement
SCHEDULE "D"
ADDITIONAL PROVISIONS
The Ministry and the Recipient agree to the following additional provisions:
1. Further to Section 15 of Schedule "A" hereto, notice can be given at the following addresses:
(a) If to the Ministry:
Ministry of Agriculture, Food and Rural Affairs
1 Stone Road West, 4th Floor
Guelph, ON
N 1 G 4Y2
Phone: 1-866-306-7827
Fax: (519) 826-4336
Attention: Dino Radocchia, Manager
(b) If to the Recipient:
Township of Oro - Medonte
148 Line 7 South
PO Box 100
Oro, Ontario
LOL 2X0
Phone: 705-487-2171
Fax: 705-487-0133
E-Mail: Imcniven@oro-medonte.ca
Attention: Lisa McNiven, Manager of Engineering and Environmental Services
21
SCHEDULE "E"
ANNUAL REPORT
r Ontario Small Waterworks Assistance Program Part 2 (OSWAP-2) Annual Report
n 1
Municipality/Local Services Board:
hone: Fax: Email:
Tele
p
For the Period:
Enter grant year:
January 15` to December 31s`
Annual OSWAP-2 allocation received by
the municipality/local services board:
$
See Schedule B of our Contribution Agreement.)
Authorized
Official
Date:
Title
I acknowledge and confirm that the information contained within this report
accurate and complete and that funding is dependant on the Province's
review and approval of this report:
re
Please complete the following table (as applicable). NOTE: Total OSWAP-2 funding spent on operational priorities should equal annual OSWAP-2 allocation.
Operational Priority:
OSWAP-2 Funding
Allocation Spent
$
Description of Eligible Costs Funded by OSWAP-2:
A. Operating Focus Areas
Planning Work
Direct Costs
Regulatory Compliance
Retaining Expertise
22
Operational Priority:
OSWAP-2 Funding
Description of Eligible Costs Funded by OSWAP-2:
Allocation Spent
$
B. Specific Projects
Undertaking a leakage audit /
maintenance to reduce leakage
Demand management program
Improving energy efficiency of
water facilities
Water meter program
Preparing business plans / full
cost reports / capital plans
Operator training
Integrating administration
Implementing shared service
agreements with neighbouring
communities
Preparing an asset management
plan / implementing broader asset
management practices
If your municipality/LSB did not spend its entire annual OSWAP-2 allocation for this year, please explain how you propose to use the remaining funds next year:
If applicable, please describe any significant changes to the municipality's/LSE's operational priorities:
23
To the best of your knowledge, please answer the following questions regarding water services:
How many residential customers active accounts) are served by your municipality/LSB? '-low many industrial, commercial, and institutional (IC&I) customers (active
accounts) are served by your municipality/LSB?
In [year], how much water was:
Used by residents I Used by IC&I I Used by non-revenue sources Lost due to leakage
Please indicate units of measurement used (e.g., cubic meters, gallons)
In [year], how much water revenue was:
Collected from residents Collected from IC&I
In [year], what were the total expenditures on electricity for the provision of water services? Does your municipality/LSB have a long-term capital plan for water services?
What percentage of your residential customers are metered? What percentage of your IC&I customers are metered?
Conservation and Efficiency-Specific Information
Is your municipality undertaking universal metering of all its customers on municipal water supply?
Does your municipality/LSB have a leak detection and repair program?
Does your municipality/LSB have other water conservation/efficiency programs?
(e.g., public information and education programs, rebates to replace existing fixtures with more water-efficient fixtures, lawn watering restrictions)
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