06/14/2017 ADDITIONS TO COUNCIL TUESDAY JUNE 13 2017
Reports
1. Report F-2017-26 - Niagara Regional Police Service - Casino Patrol Unit Fee For
Service - has been PULLED.
2. PBD-2017-25 - RFP-2017, Professional Services Contract for Building Renovation
Design at 4343 Morrison Street
Presentations
1. Copy of report from Integrity Commissioner, Brian Duxbury
Communications
1. Relief to Noise By-law - 80th Birthday Party, 5926 Valley Way, Niagara Falls.
RECOMMENDATION: For the Consideration of Council
By-laws
2017-65 A by-law to amend By-law No. 79-200, to introduce new definitions and general
provisions to prohibit certain uses on the Lands identified as the source intake
area for drinking water in the City of Niagara Falls (AM-2017-007).
Revised 2017-67
A by-law to amend By-law No. 2002-081, being a by-law to appoint City
employees, agents and third parties forthe enforcement of provincial or municipal
by-laws.
Additional
2017-78 A by-law to hereby authorize the Mayor and Treasurer to execute a Transfer
Payment Agreement between Her Majesty the Queen in right of the Province of
Ontario, represented by the Minister of Transportation for the Province of Ontario
(the "Ministry") and the City of Niagara Falls (the "Municipality") Related to
Funding Provided by the Province of Ontario (the "Province") to the Municipality
under the Public Transit Infrastructure Fund (PTIF) Phase One (Ontario).
Council Information
1. Letter from MPP Wayne Gates re: Live with Kelly and Ryan
PBD-2017-25
Nlagara�alls June 13, 2017
REPORT TO: Mayor James M.Diodati
and Members of Municipal Council
SUBMITTED BY: Building Services
SUBJECT: PBD-2017- 25
RFP-21-2017, Professional Services Contract for
Building Renovation Design at 4343 Morrison Street
RECOMMENDATION
1. That Council award the Professional Services contract, 4343 Morrison Street
Renovation to Raimondo + Associates Architects Inc. in the amount of $149,205
plus non-refundable H.S.T;
2. That the Mayor and City Clerk be authorized to execute the necessary contract
documents.
EXECUTIVE SUMMARY
The purpose of this report is to request City Council approval to award the contract for
professional services to design and perform contract administration for the construction
renovation of the former police station located at 4343 Morrison Street to accommodate
municipal office space as described in the Request for Proposal (RFP) issued March
22, 2017.
The professional services contract is recommended to be awarded to Raimondo +
Associates Architects Inc. having achieved the highest total score in the categories of:
corporate profile, expertise, experience, references, past performance, and proposal
fee.
BACKGROUND
The City of Niagara Falls acquired the former police station property located at 4343
Morrison Street in December of 2016 to accommodate office space for City staff
operations currently located in leased premises. Extensive upgrading and interior and
exterior renovations will be required to meet current building requirements and to
incorporate spatial requirements for the three Stakeholder groups:
• Information Systems Division located at 4677 Ontario Street.
Small Business, Enterprise Centre (SBEC) currently located at 4321 Queen
Street.
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PBD-2017-25
June 13, 2017
• In addition, the new renovation will also facilitate the relocation of Niagara
Regional Broadband Network (NRBN) with 25 to 30 full time individuals that is
currently located in Grimsby.
To initiate this this project the City has issued a Request for Proposal to retain a
consulting team experienced with office design program analysis that will include: a
needs assessment for each group, concept and final design, tendering process,
construction monitoring, and commissioning.
ANALYSIS I RATIONALE
A project team was created from various City departments to work with the selected
consulting team to ensure scope of work and timelines are achieved within budget by
requesting class estimate budgets during the design phase.
The high level summary of consulting scope of work in included:
1. Window replacement that of similar to the new City Hall currently being installed
that will accommodate a future new similar cladding system.
2. Modernization of the two entrances to be more inviting with additional natural
light.
3. New HVAC system that will be zoned to ensure a comfort.
4. New flat roof system, with the possibility of implementation of solar panels.
5. Design interior layouts and finishes for the three groups that will include office
spaces, washrooms, small kitchens, and board rooms.
6. New energy efficient lighting, Security, and CCN systems compatible with
current City systems.
7. Basement storage utilization design.
8. All designs to incorporate energy efficient methods and Facility Accessibility
Design Standards (FADS) where possible.
9. Perform contract and construction administration of the project as specified in the
CCDC 2008 Stipulated Contract form.
An invitational Request for Proposal (RFP) for Professional Services was issued on
March 22, 2017 inviting six (6) local architectural firms to submit their proposal for the
Morrison St building renovation. The RFP process was structured using a two (2)
envelope system that would include: company profile, expertise, three (3) references,
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PBD-2017-25
June 13, 2017
insurances and signed addenda in envelope one, and the Form of Proposal with
consulting fees in envelope two. Addenda were issued to each of the architectural firms
during the questioning period to clarify, add or remove scope of work. Instructions to
sign and submit each addendum with the proposal was mandatory to deem a complete
submission was specified in the RFP. Four (4) firms failed to submit their signed
addenda as part of envelope one, therefore, disqualifying their proposal, leaving
Raimondo + Associates Inc. and Organica Studio + Inc. for evaluation.
RFP SUBMITTED BY TENDER PRICE SUBMITTED Total Pts
xx1100
Raimondo + Associates $149,205.00 plus nonrefundable H.S.T 84.8
Inc.
Or anica Studio + Inc. $167,800.00 plus nonrefundable H.S.T 60.0
References were verified for both firms as part of the evaluation requirements by the
Chief Building Official that resulting in Raimondo + Associates Inc., achieved the highest
total score of 84.8 points. Raimondo + Associates Inc., is a leading local architectural
firm with 24 years of experience operating as a firm with significant expertise in office
design planning and construction throughout Ontario including projects for the City of
Niagara Falls.
FINANCIAL/STAFFING/LEGAL IMPLICATIONS
The approved Capital Budget in 2017 for the Morrison St., building renovation is
$4,100,000 which includes the consulting fee of $149,205 plus HST resulting in
construction budget balance of $3,950,795.
Description Amount
Capital Budget 2017 $4,100,000.00
Consulting $ 149,205.00
Total Cost $3,950,795.00
With the selection of Raimondo + Associates Inc., design work on the Morrison Street
building renovation capital project will begin immediately starting with consultations with
each of the three groups to: identify their needs and assessment, conduct a detail
building condition assessment, and to develop a final design. The construction is
anticipated to start October 1, 2017, with a target completion date mid-June of 2018.
CITY'S STRATEGIC COMMITMENT
This is in compliance with the City's Strategic Priority to improve the organizational
efficiency, effectiveness and energy savings measures.
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PBD-2017-25
June 13, 2017
Recommended by:
Alex Herlovitch, Director of Planning, Building & Development
Respectfully submitted: IS64
Ken Todd, Chief Administrative Officer
S.valeo
SAPDR\2017\PDB-2017-25, Professional Services Contarct-4343 Morrison St.docx
DUXBURYLAW
TRIAL & TRIBUNAL LAWYERS '..
Brian Duxbury B.A,L.L.e. T. David Marshall B.A.,L.L.B.,L.L.M.
Certified Specialist—Civil Litigation Barrister& Solicitor
brian@duxburylaw.ca davidQa duxburylaw.ca
June 12, 2017
VIA EMAIL & OVERNIGHT COURIER
City of Niagara Palls
4310 Queen Street, P.O. Box 1023
Niagara Palls, ON L2E 6X5
Attention: Bill Matson, Acting City Clerlc
Dear Mr. Matson:
RE: Report of Integrity Commissioner
Please find enclosed my report.
I will be attending tomorrow night's Council meeting and, if requested, I will only be providing a
short executive summary of my report.
Yours very truly,
DUXBURY LAW
PROFESSIONAL CORPORATION
Per:
1
Brian Duxbury
BD:mc
Encl.
cc: Ken Beaman, City Solicitor
DUXBURY LAW PROFESSIONAL CORPORATION '...
a King St.W., Suite Soo, Hamilton, ON L8P 2A4 I T 905 5701142 1 F 905 570 1955
duxburylaw.ca '..
REPORT OF BRIAN DUX13URY
OF DUXBURY LAW PROFESSIONAL CORPORATION
AS INTEGRITY COMMISSIONER
TO: MAYOR AND MEMBERS OF COUNCIL OF THE CORPORATION OF THE
CITY OF NIAGARA FALLS
INTRODUCTION
1. This is the report of Brian Duxbury of Duxbury Law Professional Corporation, Integrity
Commissioner, to the Mayor and Members of Council of the City of Niagara Falls ("the
City"). This report concerns an alleged breach of In Camera matters.
SUMMARY CONCLUSION
2. Councillor Carolynn Ioanonni improperly disclosed sensitive and confidential information
which was discussed In Camera by Council on January 24,2017,to a third party who was
not entitled to such information.
COUNCIL APPOINTMENT OF AN INTEGRITY COMMISSIONER
3. At Council's meeting on February 28, 2017, Council passed the following motion:
"ORDERED on the motion of Councillor Thomson, seconded by
Councillor Kerrio that Council directs to proceed with an Integrity
Commissioner."
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4. Also relevant to my appointment and the subject matter of my appointment is the motion
passed by Council on February 14,2017, which provided as follows:
"ORDERED on the motion of Councillor Thomson, seconded by Councillor
Pietrangelo that the matter of breach of In Camera matters be referred to staff."
5. Section 223.3 of the Municipal Act,2001 authorizes a municipality to appoint an
Integrity Commissioner who reports to council and who is responsible for performing in
an independent manner the functions assigned by the municipality with respect to the
application of the Code of Conduct for members of council and the application of any
procedures, rules and policies of the municipality governing the ethical behavior of
members of council or both. A copy of sections 223.1 to 223.8 is attached to this report
as Appendix A and portions of these sections are the subject of fiu ther comment below.
THE CITY OF NIAGARA FALLS—CODE OF CONDUCT AND POLICY CONTEXT
6. In conducting my investigation,I determined there were two documents that were
relevant to my inquiry.
7. The City of Niagara Falls has a policy(Policy 400-35) which is entitled"Code of
Ethics/Conduct(Conflict of Interest)". The following are relevant excerpts from this
Policy:
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2. SCOPE
This policy applies to all City of Niagara Falls employees,including but not
limited to regular, temporary and contract employees, and to volunteers,
students and intems (collectively called `Employees"), as well as elected
officials. This Policy is intended to supplement any other requirements
imposed by applicable legislation,standards of professional practice,or any
other requirements imposed by relevant City entities or departments. The
standards outlined in this policy are also particularly relevant to employees
or elected officials who are in a position to make or influence decisions of
the organization.
3. RESPONSIBILITIES AND EXPECTATIONS
3.1 Elected Officials
(a) All elected officials are expected to work together to promote a
workplace built on our core values of accountability, leadership, teamwork
and respect.
(b) Elected Officials are expected to set a prime example. In all their
business dealings,honesty and integrity shall be required.
4.2 "Code of Ethics"
The Code of Ethics is a written set of guidelines issued by an organization
to its workers and management to help them conduct their actions in
accordance with its primary values and ethical standards.
5.5 Confidential Information
Employees may not disclose confidential or privileged information about
the property, or affairs of the organization, or use confidential information
to advance personal or others' interests. Employees cannot divulge
confidential or privileged information about the city's employees without
those employees' written authorization.
8, FAILURE TO COMPLY WITH THE POLICY
Employees who fail to comply with this policy are subject to disciplinary
action up to and including termination.
8. I comment on the adequacy of these documents further below.
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9. The other document that was relevant to my inquiry is a document entitled "The City of
Niagara Falls—Corporate Values Charter". In particular, and among other stated values,
the document states the following:
TEAMWORK
...All for one!
We collaborate and cooperate with each other in an open trusting and
truthful fashion enabling us to build consensus, share information, and
achieve our goals.
INVESTIGATION
10. My investigation included interviews with six individuals, including members of staff of
the City, the Mayor and Councillors. The focus of my investigation and inquiry was
whether Councillor Carolynn Ioannoni, who attended the In Camera meeting of Council
on January 24, 2017, shared or disseminated information from that meeting with third
parties or individuals, in breach of the obligation to maintain the confidentiality and non-
disclosure of the content of an In Camera meeting.
11. At the outset of my investigation and during my investigation it was clear that a number of
individuals, who were prepared to share information with me, were both very concerned
about the events of January 24, 2017, and concerned about any repercussions that might
flow from their revealing information to me or my revealing their identity in this report.
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12.Under Section 223,5 of the Municipal Act, 2001 I am obliged to preserve secrecy with
respect to all matters that come to my knowledge in the course of my investigation. In
addition, Section 223.6(2) of the Municipal Act provides that when reporting to the
Municipality on my opinion as to whether a member of Council contravened the applicable
code of conduct, I may discuss in the report such matters as in my opinion are necessary
for the purposes of the report. Accordingly, in providing this report and in providing the
results of my investigation and findings,I do not identify any individuals who met with me
or who provided information. However, it is necessary to provide some degree of detail
regarding my exchanges with certain individuals so Council can properly understand how
I came to the findings and conclusions contained herein.
EVIDENCE
13. Council met In Camera on January 24, 2017 in the late afternoon. Councillor Carolynn
Ioannoni attended that In Camera meeting.
14.A portion of the In Camera meeting dealt with a very sensitive personnel matter as well as
a matter relating to certain bargaining negotiations.
15.Later that evening, on January 24, 2017, there was a text exchange between an individual
(witness #1 or Wl) and a third party (witness #2 or W2), whereby W2 confirmed to Wl
that W2 had"just found out"about certain highly sensitive information that was discussed
during the In Camera meeting. When W2 was asked by Wl,via text message, as to how
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W2 found out,W2 confirmed that"Carolynn"was the source of that information. One of
the exchanges included the following:
W 1 –"How did u find that out?? Oh carolynn right"
W2–"Yep"
16. Further text exchanges between W1 and W2 that night and following served to verify that
W2 had been given sensitive In Camera information and that the source of that information
was Councillor Carolynn Ioannoni:
January 24,2017
W2–"I don't think carolynn would lie about it".
January 24,2017
W2-"She didn't tell me what they said just that-needs to be careful of them"
January 26,2017
W2–"Carotynn can't be disciplined for leaking it–there's no integrity
commissioner–and even if there was–she won't be removed from council.
They don't have legislative powers to do that. She'd get a reprimand and a
deduction of salary if they had one and that's a maybe".
17. I was satisfied that the text messages were created and exchanged between WI and W2.
18. Later, on the evening of January 24, 2017, W1 sent a text message to the Mayor briefly
summarizing her exchange with W2.
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19. I sent a letter to W2 identifying myself and the purpose of my inquiry. W2 declined to
meet with me and advised that"I am confident I don't have any information that would be
helpful to you in the conducting of your inquiry."
20. As my investigation continued,and as I received additional information,I provided the full
text of the critical exchange between W2 and WI that occurred on January 24, 2017. In
response, W2 advised me that W2's exchange with W1 on January 24, 2017 was just"to
test M[W 1]". W2 further advised that"I fed 0 [WI] a lie,to see if my theory was right
and that® [Wl] would run to the male councillor with it. Obviously she did." WZ
went on to advise me that "I manipulated 0 [W1] to test 0 [Wl], ..." W2 went on to
deny that W2 had received any In Camera information from any councillor from the City
and specifically denied that W2 had received any In Camera information from Councillor
Ioannoni on January 24, 2017.
21. The response from W2 therefore verified that the text exchanges had occurred with W l.
22. However,I find and determine, on a balance of probabilities,that W2's explanation for the
text exchanges is not believable. The content of the text exchanges,and especially the text
exchange described in paragraph 15, above, was accurate about sensitive information
discussed only In Camera on January 24. The critical text exchange between W2 and W 1
happened that same evening,following the In Camera meeting. Several further exchanges
between W2 and W1 over the course of that evening and the next two days only served to
verify that W2 had been given information by Councillor Ioannoni that was the subject
a
matter of the In Camera meeting. The content and timing of the exchanges do not support
W2's assertions of manipulation and only serves to confirm W2, a third parry not entititled
to In Camera information,received such information from Councillor Ioannoni.
23. I wrote to Councillor Ioannoni to advise her that I had been appointed as the Integrity
Commissioner for the City of Niagara Falls to conduct an inquiry in respect to whether
information was disclosed or the content of any In Camera meeting of Council conducted
on January 24, 2017, was disclosed to persons that were not entitled to receive such
information. My letter of Inquiry to Councillor Ionannorti included the following:
My inquiry will entail a review of the content of any in-camera meeting
conducted on January 24, 2017 by Council of the City of Niagara Falls,
whether you attended that meeting and whether information provided,
exchanged or discussed during that meeting was disseminated or reported
by you in any manner to any third parties.
24. I then had several email exchanges with Councillor Ioannoni including a request from her
for a copy of the complaint and full disclosure of all corresponding documentation. In my
letter of April 6, 2017 to Councillor Carolynn Ioannoni I advised as follows:
Further to your email of April 5, 2017, the Municipal Act, 2001 provides
under Section 223.3 that the municipality may appoint an Integrity
Commissioner to perform the functions assigned by the municipality with
respect to(a)the application of the code of conduct for members of council
and the code of conduct for members of local boards or either of them; (b)
the application of any procedures,rules and policies of the municipality and
local boards governing the ethical behavior of members of council and the
local boards or either of them; or (c) both clauses (a) and (b). I attach a
copy of Section 223.3 in its entirety.
F I
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My appointment is pursuant to these provisions and the Resolution of
Council provided to you yesterday.
25. On April 7, 2017 Councillor Ioannoni then sent an email to Ken Beaman and Ken Todd,
copying myself. The content of Councillor Ioannoni's email was as follows:
Ken
Can you please tell me who retained Mr. Duxbury for this investigation?
Also to ensure procedural fairness can you please provide me with the
specific Terms of Reference and Policies Mr. Duxbury was provided to
conduct this investigation.
Also,I have corresponded with him to let him know I am happy to cooperate
in this investigation and will provide a written submission to him and book
a follow up meeting with him on a date he has recommended once I am
provided with a copy of the complaint and supporting documentation.
I look forward to your quick response to that we can move on in this
investigation.
Carolynn
26. On April 7, 2017 I sent an email to Councillor Ioannoni and copied Mr. Beaman and Mi.
Todd and among other matters, stated the following:
I consider your email to Mr. Beaman and Mr. Todd to be an interference
with my investigation. Kindly refrain from making any such further
requests of potential witnesses or employees of the City of Niagara Falls
while my investigation is being conducted.
27. Councillor Ioannoni then renewed her request for a copy of the complaint and supporting
documentation. I responded to Councillor Ioannoni on April 7,2017 as follows:
Further to your email of 2:52 p.m. today it is not necessary that there be a
complaint for me to conduct an inquiry and there is none here with respect
to this matter. As I explained to you yesterday,my appointment is pursuant
to Section 223.3 of the Municipal Act, 2001. I have advised you of the
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purpose and scope of my inquiry and you have all the information that you
are entitled to in order to respond to my request.
28. I then renewed my request to meet with Councillor Ioannoni and obtain her information.
A meeting was then scheduled with Councillor Ioannoni for April 21, 2017. Councillor
Ic annoni was invited to bring any notes that she made or any other records that she made
during the In Camera meeting of January 24,2017.
29. On April 17,2017,Councillor Ioannoni renewed her request for a complaint and supporting
documentation and advised that once she had that information she would cooperate but
would not be meeting with me. She then requested my questions in writing.
30. I responded to Councillor Ioannoni on April 18, 2017, the content of which included the
following:
Respectfully, I have already advised you that it is not necessary that there
be a complaint for me to conduct an inquiry. I have advised you of this in
my email of April 7, 2017, another copy of which is attached. You had
already agreed to meet with me this coming Friday (not Thursday as
indicated in your email) and I now understand that you are refusing to meet
with me.
I am not going to conduct my inquiry and investigation by exchanges of
correspondence. The subject matter of my inquiry is very clear. I want to
understand whether you attended the in-camera meeting of Council on
January 24,2017,whether you noted or recorded any portion of the content
or information discussed during that meeting and whether any of that
information was disseminate or shared by you with anyone. If so, what
information did you share, how did you share it and with whom did you
share it? You can provide me your written response on these issues, if you
wish,but I am not waiving my request to meet with you and ask you further
questions relating to this matter.
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31. On April 18,2017,Councillor Ioannoni responded in writing to me via email to advise that
she attended the In Camera meeting on January 24,2017. She advised that she took notes
during that meeting. She advised that "I did not share my notes or any information in
regard to that meeting." She advised that she would not be meeting with me but would be
happy to answer any other questions I may have "in writing so that they can't be
misconstrued".
32. On April 24,2017,I again emailed Councillor Ioannoni to advise her that as a result of my
investigations I wanted to renew my request to meet with her and to give her a further
opportunity to address the events of January 24,2017. In that email I provided Councillor
Ioannoni with the critical text exchange between W2 and WI on the evening of January
24,2017. I asked Councillor Ioannoni not to share the attached text document with anyone.
33. Councillor Icannoni responded via email on April 24, 2017, and among other answers,
advised me that she did not provide W2 with any In Camera information that evening and
stated"That text is a lie.".
34. The next day on April 25, 2017, Councillor Ioanonni advised me via email that she had
received a visit from W2 and that W2 had provided her with two text messages, which she
provided to me. The two text messages that were provided to me were selective, out of
context and intended to imply the source of In Camera information was another Councillor,
or, perhaps, that the disclosure to W2 was limited. Councillor Ioannoni then advised me
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that she would be forwarding me another text that had been sent by WI, presumably to
W2.
35. The same day Councillor Ioannoni provided me with another text extract from the texts of
W 1 -again attempting to imply or suggest, I find,the source of In Camera information on
the evening of January 24, 2017, was another Councillor. From these events, I conclude
Councillor Ioannom was engaging in conversations, meetings or exchanges with W2 in
respect to these events. I also conclude Councillor Ioannoni was endeavouring to either
deflect the issue or imply another theory of events in respect to the events of January 24,
2017.
36. Based on my review of the totality of the text exchanges between W1 and W2 and
especially in view of the content of the critical text exchange of January 24,2017,described
above, I find and conclude as follows:
a) The text exchange between W2 and W1 occurred;
b) The text exchanges clearly identify Councillor Ioannoni as the source of
highly sensitive In Camera information shared with W2;
C) W2 knew and conveyed information to WI, notwithstanding her later text
("she didn't tell me what they said just that-need to be careful of them"),that
was part of the subject matter of the In Camera discussion;
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d) Additional text messages between W1 and W2 that evening and over the
course of the next two days corroborates and verifies Councillor Ioannoni was the
source of sensitive In Camera information being provided to W2;
e) W2's explanation that the text exchange was a"lie"or a manipulation is not
credible because of the content of the text exchange on January 24, 2017, and
because of the context of the totality of the exchanges;
f) Councillor's Ioannoni's attempts to provide me with other selective text
messages and her failure to squarely address or explain the critical text message of
January 24, 2017, was not believable and was a purposeful hindrance to my
investigation;
g) W2 was a third party who was not entitled to any of the In Camera
information.
37. I therefore find, on a balance of probabilities, that Councillor Carolynn loannoni shared
highly sensitive and confidential personnel information discussed in an In Camera session
of Council on January 24, 2017, with a third parry (W2), who was not entitled to such
information.
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38. My investigation and interviews also involved concerns in respect to whether the In
Camera meeting was recorded by Councillor Ioannoni. Councillor Ioannoni had her Ipad
with her during the In Camera meeting of January 24, 2017. 'I was unable to determine
whether Councillor Ioannoni recorded the In Camera meeting and I make no finding in this
regard.
39. The text exchanges between W2 and WI also contained some suggestion or inference that
Councillor Ioannoni shared information with W2 in order to give W2 a"heads up" about
the potential implications that would flow from the In Camera meeting. I comment on this
further below.
THE IMPORTANCE OF PROTECTING THE CONFIDENTIALITY OF THE CONTENT
OF AN IN CAMERA MEETING
40.Under the Municipal Act, 2001 Councils are allowed to go In Camera and have a meeting,
the content of which is not public, is not made available to the public and is not made
available to the public under a request under the Municipal Freedom of Information &
Protection of Privacy Act(MFIPPA). The City of Niagara Falls does not appear to have
any clear protocol or policy in respect to the importance of protecting the content of In
Camera meetings from any disclosure to third parties or the public) However, it is clear
THE CITY'S CODE OF CONDUCT
The City's Code of Conduct and policies in respect to In Camera meetings are inadequate. I have described above
in this report the policies that currently exist and they are insufficient.The City requires a much more detailed and
robust code of conduct to deal with a broad range of procedural issues including,but not limited to,the following:
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and obvious that many of the discussion items that councils undertake in an In Camera
session are highly sensitive, and, clearly confidential.
41. In my inquiry and interviews of various witnesses, I heard a repeated pattern of concern
about the dangers and problems associated with disclosure of In Camera content or the
apprehension that In Camera content may be disclosed. There is a significant wariness or
unease among senior staff of the City, and some of its Councillors, in respect to the
potential that the content of In Camera meetings will be inappropriately disclosed. It was
clear to me that this sense of unease and wanness has had a damaging and deteriorating
impact upon the relationship among Councillors or the relationship between Councillors
and senior staff at the City. In other words, it is apparent that senior staff are and remain
deeply concerned and anxious about disclosingsensitive and confidential matters at In
Camera meetings for fear such information will be disseminated to the public. Equally, it
is clear that Councillors feel reluctance about the security of In Camera discussions and
that candid and frank discussion In Camera is severely restricted or dampened because of
these concerns. It is clear to me that Council must renew its efforts to understand, respect
and protect each other's submissions during an In Camera session and exchanges of those
1. A statement on the vital importance of In Camera discussions;
2. A clear statement that the content of In Camera discussions cannot be shared,in any way,by
hint or otherwise,with any third parties or the public;
3. The chair of any In Camera meeting should request and ask for confirmation from each
Councillor in attendance that they are not recording the In Camera discussion in any manner;and
4. The In Camera meeting should be recorded in its entirety by an appropriate member of the City
staff(the Clerk or the Clerk's designate in some circumstances). That recording should be done
through a proper recording system that is properly archived in a City record(without access to
MFIPPA requests).
Creating a more comprehensive Code of Conduct that clearly addresses In Camera protocol will refresh the issue for
all Councillors and provide a framework for Council to re-establish trust and confidence in their In Camera
proceedings.
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submissions with senior staff in order to restore trust and functionality in the way that
Council conducts its business.
CONCLUSION
42. I conclude that Councillor Carolynn Ioannoni improperly shared the content of an In
Camera meeting on January 24, 2017, with a person who was not entitled to receive such
information. While the Councillor may have had, in her mind, good intentions to ensure
that someone who was affected by the In Camera discussion was given a "heads up", it
remains an improper disclosure of the content of an In Camera meeting. The rule is
inviolate and Councillors have no ability to, and are not entitled to, disclose,hint or imply
some or all of the content of an In Camera meeting to individuals who are not entitled to
it.
43. The City's Code of Ethics/Conduct requires employees, including elected officials, to
protect confidential and privileged information. Sensitive and confidential personnel
issues discussed In Camera require the highest regard for confidentiality. Further, the
City's Code of Ethics/Conduct policy document requires all elected officials to work
together to promote a workplace built on core values of accountability, leadership, team
work and respect and to set and be a prime example for others. In all of their business
dealings, honesty and integrity is required. I conclude that Councillor Carolynn Ioanonni
breached the City's Code of Ethics/Conduct.
17
44. In respect to the available penalties to the City, Subsection 223.4(5)provides as follows:
Penalties
(5) The municipality may impose either of the following penalties on a member of
council or of a local board if the Commissioner reports to the municipality that, in
his or he-Or opinion,the member has contravened the code of conduct:
1. A reprimand.
2. Suspension of the remuneration paid to the member in respect of his or her
services as a member of council or of the local board, as the case may be, for a
period of up to 90 days. 2006, c. 32, Sched. A, s. 98.
45. This report is provided to Mayor and Members of Council as a report that is intended to be
made public.
Dated at Hamilton this 13th day of June,2017.
Brian Mxbury(LSUC A23 )
DUXBURY LAW PROFESSIONAL
CORPORATION
Barristers and Solicitors
500— 1 King Street West
Hamilton, ON LSP 1A4
T. (905) 570-1242
F. (905) 570-1955
Integrity Commissioner for the City
of Niagara Falls
APPENDIX A
A
PART VA
ACCOUNTABILITY AND TRANSPARENCY
Definitions
223.1 In this Part,
"code of conduct" means a code of conduct described in section 223.2; ("code de
deontologie")
"grant recipient" means a person or entity that receives a grant directly or indirectly
from the municipality, a local board or a municipally-controlled corporation;
("beneficiaire d'une subvention")
"local board" means a local board other than,
(a) a society as defined in subsection 3 (1) of the Child and Family Services Act,
Note: On a day to be named by proclamation of the Lieutenant Governor, clause (a)
of the definition of "local board" in section 223.1 of the Act is repealed and the
following substituted: (See: 2017, c. 14, Sched. 4, s. 23 (3))
(a) a society as defined in subsection 2 (1) of the Child, Youth and Family Services Act,
2017,
(b) a board of health as defined in subsection 1 (1) of the Health Protection and
Promotion Act,
(c) a committee of management established under the Long-Term Care Homes Act,
2007,
(d) a police services board established under the Police Services Act,
(e) a board as defined in section 1 of the Public Libraries Act,
(f) a corporation established in accordance with section 203,
(g) such other local boards as may be prescribed; ("conseil local")
"municipally-controlled corporation" means a corporation that has 50 per cent or more
of its issued and outstanding shares vested in the municipality or that has the
appointment of a majority of its board of directors made or approved by the
municipality, but does not include a local board as defined in subsection 1 (1);
("societe controlee par la municipalite")
"public office holder" means,
(a) a member of the municipal council and any person on his or her staff,
(b) an officer or employee of the municipality,
(c) a member of a local board of the municipality and any person on his or her staff,
(d) an officer, director or employee of a local board of the municipality, and
(e) such other persons as may be determined by the municipality who are appointed
to any office or body by the municipality or by a local board of the municipality.
("titulaire d'une charge publique") 2006, c. 32, Sched. A, s. 98; 2007, c. 8,
s. 218 (5).
Section Amendments with date in force(d/m/y)
Code of conduct
223.2 (1) Without limiting sections 9, 10 and 11, those sections authorize the
municipality to establish codes of conduct for members of the council of the municipality
and of local boards of the municipality. 2006, c. 32, Sched. A, s. 98.
No offence
(2) A by-law cannot provide that a member who contravenes a code of conduct is guilty
of an offence. 2006, c. 32, Sched. A, s. 98.
Note: On a day to be named by proclamation of the Lieutenant Governor, section
223.2 of the Act is repealed and the following substituted: (See: 2017, c. 10; Sched.
1' s. 18)
Code of conduct
223.2 (1) A municipality shall establish codes of conduct for members of the council of
the municipality and of its local boards. 2017, c. 10, Sched. 1, s. 18.
Same
(2) Without limiting sections 9, 10 and 11, those sections authorize the municipality to
establish codes of conduct. 2017, c. 10, Sched. 1, s. 18.
No offence or administrative penalty
(3) A by-law cannot provide that a member who contravenes a code of conduct is guilty
of an offence or is required to pay an administrative penalty. 2017, c. 10, Sched. 1, s.
18.
Regulations
(4) The Minister may make regulations prescribing one or more subject matters that a
municipality is required to include in a code of conduct. 2017, c. 10, Sched. 1, s. 18.
Section Amendments with date in force(d1m/y)
Integrity Commissioner
223.3 (1) Without limiting sections 9, 10 and 11, those sections authorize the
municipality to appoint an Integrity Commissioner who reports to council and who is
responsible for performing in an independent manner the functions assigned by the
municipality with respect to,
(a) the application of the code of conduct for members of council and the code of
conduct for members of local boards or of either of them;
(b) the application of any procedures, rules and policies of the municipality and local
boards governing the ethical behaviour of members of council and of local
boards or of either of them; or
(c) both of clauses (a) and (b). 2006, c. 32, Sched. A, s. 98.
Note: On a day to be named by proclamation of the Lieutenant Governor,
subsection 223.3 (1) of the Act is repealed and the following substituted: (See:
2017, c. 10, Sched. 1, s. 19 (1))
Integrity Commissioner
(1) Without limiting sections 9, 10 and 11, those sections authorize the municipality to
appoint an Integrity Commissioner who reports to council and who is responsible for
performing in an independent manner the functions assigned by the municipality with
respect to any or all of the following:
1. The application of the code of conduct for members of council and the code of
conduct for members of local boards.
2. The application of any procedures, rules and policies of the municipality and local
boards governing the ethical behaviour of members of council and of local boards.
3. The application of sections 5, 5.1 and 5.2 of the Municipal Conflict of Interest Act to
members of council and of local boards.
4. Requests from members of council and of local boards for advice respecting their
obligations under the code of conduct applicable to the member.
5. Requests from members of council and of local boards for advice respecting their
obligations under a procedure, rule or policy of the municipality or of the local board,
as the case may be, governing the ethical behaviour of members.
6. Requests from members of council and of local boards for advice respecting their
obligations under the Municipal Conflict of Interest Act.
7. The provision of educational information to members of council, members of local
boards, the municipality and the public about the municipality's codes of conduct for
members of council and members of local boards and about the Municipal Conflict of
Interest Act. 2017, c. 10, Sched. 1, s. 19 (1).
Note: On a day to be named by proclamation of the Lieutenant Governor, section
223.3 of the Act is amended by adding the following subsections: (See: 2017, c. 10,
Sched. 1, s. 19 (2))
Provision for functions if no Commissioner appointed
(1.1) If a municipality has not appointed a Commissioner under subsection (1), the
municipality shall make arrangements for all of the responsibilities set out in that
subsection to be provided by a Commissioner of another municipality. 2017, c. 10,
Sched. 1, s. 19 (2).
Provision for functions if responsibility not assigned
Y Y
(1.2) If a municipality has appointed a Commissioner under subsection (1), but has not
assigned functions to the Commissioner with respect to one or more of the
responsibilities set out in that subsection, the municipality shall make arrangements for
those responsibilities to be provided by a Commissioner of another municipality. 2017,
c. 10, Sched. 1, s. 19 (2).
Powers and duties
(2) Subject to this Part, in carrying out the responsibilities described in subsection (1),
the Commissioner may exercise such powers and shall perform such duties as may be
assigned to him or her by the municipality. 2006, c. 32, Sched. A, s. 98.
Note: On a day to be named by proclamation of the Lieutenant Governor, section
223.3 of the Act is amended by adding the following subsections: (See: 2017,c. 10,
Schad. 1, s. 19 (3))
Request for advice shall be in writing
(2.1) A request by a member of council or of a local board for advice from the
Commissioner under paragraph 4, 5 or 6 of subsection (1) shall be made in writing.
2017, c. 10, Sched. 1, s. 19 (3).
Advice shall be in writing
(2.2) If the Commissioner provides advice to a member of council or of a local board
under paragraph 4, 5 or 6 of subsection (1), the advice shall be in writing. 2017, c. 10,
Sched. 1, s. 19 (3).
Content of educational information
(2.3) If the Commissioner provides educational information to the public under
paragraph 7 of subsection (1), the Commissioner may summarize advice he or she has
provided but shall not disclose confidential information that could identify a person
concerned. 2017, c. 10, Sched. 1, s. 19 (3).
Delegation
(3) The Commissioner may delegate in writing to any person, other than a member of
council, any of the Commissioner's powers and duties under this Part. 2006, c. 32,
Sched. A, s. 98.
Same
(4) The Commissioner may continue to exercise the delegated powers and duties,
despite the delegation. 2006, c. 32, Sched. A, s. 98.
Status
(5) The Commissioner is not required to be a municipal employee. 2006, c. 32,
Sched. A, s. 98.
Note: On a day to be named by proclamation of the Lieutenant Governor, section
223.3 of the Act is amended by adding the following subsections: (See: 2017, c. 10,
Sched. 1, s. 19 (4))
Indemnity
(6) A municipality shall indemnify and save harmless the Commissioner or any person
acting under the instructions of that officer for costs reasonably incurred by either of
them in connection with the defence of a proceeding if the proceeding relates to an act
done in good faith in the performance or intended performance of a duty or authority
under this Part or a by-law passed under it or an alleged neglect or default in the
performance in good faith of the duty or authority. 2017, c. 10, Sched. 1, s. 19 (4).
Interpretation
(7) For greater certainty, nothing in this section affects the application of section 448
with respect to a proceeding referred to in subsection (6) of this section. 2017, C. 10,
Sched. 1, s. 19 (4).
Section Amendments with date in force (d/mly)
Inquiry by Commissioner
223.4 (1) This section applies if the Commissioner conducts an inquiry under this Part,
(a) in respect of a request made by council, a member of council or a member of the
public about whether a member of council or of a local board has contravened
the code of conduct applicable to the member; or
(b) in respect of a request made by a local board or a member of a local board about
whether a member of the local board has contravened the code of conduct
applicable to the member. 2006, c. 32, Sched. A, s. 98.
Powers on inquiry
(2) The Commissioner may elect to exercise the powers under sections 33 and 34 of
the Public Inquiries Act, 2009, in which case those sections apply to the inquiry. 2009,
c. 33, Sched. 6, s. 72 (1).
Information
(3) The municipality and its local boards shall give the Commissioner such information
as the Commissioner believes to be necessary for an inquiry. 2006, c. 32, Sched. A,
s. 98.
Same
(4) The Commissioner is entitled to have free access to all books, accounts, financial
records, electronic data processing records, reports, files and all other papers, things or
property belonging to or used by the municipality or a local board that the Commissioner
believes to be necessary for an inquiry. 2006, c. 32, Sched. A, s. 98.
Penalties
(5) The municipality may impose either of the following penalties on a member of
council or of a local board if the Commissioner reports to the municipality that, in his or
her opinion, the member has contravened the code of conduct:
1. A reprimand.
2. Suspension of the remuneration paid to the member in respect of his or her
services as a member of council or of the local board, as the case may be, for a
period of up to 90 days. 2006, c. 32, Sched. A, s. 98.
Same
(6) The local board may impose either of the penalties described in subsection (5) on its
member if the Commissioner reports to the board that, in his or her opinion, the member
has contravened the code of conduct, and if the municipality has not imposed a penalty
on the member under subsection (5) in respect of the same contravention. 2006, c. 32,
Sched. A, s. 98.
Note: On a day to be named by proclamation of the Lieutenant Governor, section
223.4 of the Act is amended by adding the following subsections: (See: 2017, c. 10,
Sched. 1, s. 20)
Termination of inquiry when regular election begins
(7) If the Commissioner has not completed an inquiry before nomination day for a
regular election, as set out in section 31 of the Municipal Elections Act, 1996, the
Commissioner shall terminate the inquiry on that day. 2017, c. 10, Sched. 1, s. 20.
Same
(8) If an inquiry is terminated under subsection (7), the Commissioner shall not
commence another inquiry in respect of the matter unless, within six weeks after voting
day in a regular election, as set out in section 5 of the Municipal Elections Act, 1996, the
person or entity who made the request or the member or former member whose
conduct is concerned makes a written request to the Commissioner that the inquiry be
commenced. 2017, c. 10, Sched. 1, s. 20.
Other rules that apply during regular election
(9) The following rules apply during the period of time starting on nomination day for a
regular election, as set out in section 31 of the Municipal Elections Act, 1996, and
ending on voting day in a regular election, as set out in section 6 of that Act:
1. There shall be no requests for an inquiry about whether a member of council or of a
local board has contravened the code of conduct applicable to the member.
2. The Commissioner shall not report to the municipality or local board about whether, in
his or her opinion, a member of council or of a local board has contravened the code
of conduct applicable to the member.
3. The municipality or local board shall not consider whether to impose the penalties
referred to in subsection (5) on a member of council or of a local board. 2017, c. 10,
Sched. 1, s. 20.
Section Amendments with date in force (d/m/y)
Note: On a day to be named by proclamation of the Lieutenant Governor, the Act
is amended by adding the following section: (See: 2017, c. 10, Sched. 1, s. 21)
Inquiry by Commissioner re s. 5, 5.1 or 5.2 of Municipal Conflict of Interest Act
223.4.1 (1) This section applies if the Commissioner conducts an inquiry under this Part
in respect of an application under subsection (2). 2017, c. 10, Sched. 1, S. 21.
Application
(2) An elector, as defined in section 1 of the Municipal Conflict of Interest Act, or a
person demonstrably acting in the public interest may apply in writing to the
Commissioner for an inquiry to be carried out concerning an alleged contravention of
section 5, 5.1 or 5.2 of that Act by a member of council or a member of a local board.
2017, c. 10, Sched. 1, s. 21.
No application for inquiry during regular election
(3) No application for an inquiry under this section shall be made to the Commissioner
during the period of time starting on nomination day for a regular election, as set out in
section 31 of the Municipal Elections Act, 9996, and ending on voting day in a regular
election, as set out in section 5 of that Act. 2017, c. 10, Sched. 1, s. 21.
Timing
(4) An application may only be made within six weeks after the applicant became aware
of the alleged contravention. 2017, c. 10, Sched. 1, s. 21.
Exception ,
(5) Despite subsection (4), an application may be made more than six weeks after the
applicant became aware of the alleged contravention if both of the following are
satisfied:
1. The applicant became aware of the alleged contravention within the period of time
starting six weeks before nomination day for a regular election, as set out in section
31 of the Municipal Elections Act, 1996, and ending on voting day in a regular
election, as set out in section 5 of that Act.
2. The applicant applies to the Commissioner under subsection (2) within six weeks
after the day after voting day in a regular election, as set out in section 5 of
the Municipal Elections Act, 1996. 2017, G. 10, Sched. 1, s. 21.
Content of application
(6) An application shall set out the reasons for believing that the member has
contravened section 5, 5.1 or 5.2 of the Municipal Conflict of Interest Act and include a
statutory declaration attesting to the fact that the applicant became aware of the
contravention not more than six weeks before the date of the application or, in the case
where an applicant became aware of the alleged contravention during the period of time
described in paragraph 1 of subsection (5), a statutory declaration attesting to the fact
that the applicant became aware of the alleged contravention during that period of time.
2017, c. 10, Sched. 1, s. 21.
Inquiry
(7) The Commissioner may conduct such inquiry as he or she considers necessary.
2017, c. 10, Sched. 1, s. 21.
Public meeting
(8) If the Commissioner decides to conduct an inquiry, the Commissioner may have a
public meeting to discuss the inquiry. 2017, c. 10, Sched. 1, s. 21.
Powers on inquiry
(9) The Commissioner may elect to exercise the powers under sections 33 and 34 of
the Public Inquiries Act, 2009, in which case those sections apply to the inquiry. 2017, c.
10, Sched. 1, s. 21.
Information
(10) The municipality and its local boards shall give the Commissioner such information
as the Commissioner believes to be necessary for an inquiry. 2017, c. 10, Sched, 1, s.
21.
Same
(11) The Commissioner is entitled to have free access to all books, accounts, financial
records, electronic data processing records, reports, files and all other papers, things or
property belonging to or used by the municipality or a local board that the Commissioner
believes to be necessary for an inquiry. 2017, c. 10, Sched. 1, s. 21.
Termination of inquiry when regular election begins
(12) If the Commissioner has not completed an inquiry before nomination day for a
regular election, as set out in section 31 of the Municipal Elections Act, 1996, the
Commissioner shall terminate the inquiry on that day. 2017, c. 10, Sched. 1, s. 21.
Same
(13) If an inquiry is terminated under subsection (12), the Commissioner shall not
commence another inquiry in respect of the matter unless, within six weeks after voting
day in a regular election, as set out in section 5 of the Municipal Elections Act 1996, the
person who made the application or the member or former member whose conduct is
concerned applies in writing to the Commissioner for the inquiry to be carried out. 2017,
c. 10, Sched. 1, s. 21.
Timing
(14) The Commissioner shall complete the inquiry within 180 days after receiving the
completed application, unless the inquiry is terminated under subsection (12). 2017, c.
10, Sched. 1, s. 21.
Completion
(15) Upon completion of the inquiry, the Commissioner may, if he or she considers it
appropriate, apply to a judge under section 8 of the Municipal Conflict of Interest Act for
a determination as to whether the member has contravened section 5, 5.1 or 5.2 of that
Act. 2017, c. 10, Sched. 1, s. 21.
Notice to applicant re decision not to apply to judge
(16) The Commissioner shall advise the applicant if the Commissioner will not be
making an application to a judge. 2017, c. 10, Sched. 1, s. 21.
Reasons after inquiry
(17) After deciding whether or not to apply to a judge, the Commissioner shall publish
written reasons for the decision. 2017, c. 10, Sched. 1, s. 21.
Costs
(18) The Commissioner's costs of applying to a judge shall be paid by the following:
1. If the member is alleged to have contravened section 5, 5.1 or 5.2 of the Municipal
Conflict of Interest Act as a member of council of a municipality, the municipality.
2. If the member is alleged to have contravened section 5, 5.1 or 52 of the Municipal
Conflict of Interest Act as a member of a local board, the local board. 2017, c. 10,
Schad. 1, s. 21.
Section Amendments with date in force (d/m/y)
Duty of confidentiality
223.5 (1) The Commissioner and every person acting under the instructions of the
Commissioner shall preserve secrecy with respect to all matters that come to his or her
knowledge in the course of his or her duties under this Part. 2006, c. 32, Sched. A,
s. 98.
Exception
(2) Despite subsection (1), information may be disclosed in a criminal proceeding as
required by law or otherwise in accordance with this Part. 2006, c. 32, Sched. A, S. 98.
Note: On a day to be named by proclamation of the Lieutenant Governor, section
223.5 of the Act is amended by adding the following subsections: (See: 2017, c. 10,
Sched. 1, s. 22)
Release of advice
(2,1) Advice provided by the Commissioner to a member under paragraph 4, 5 or 6 of
subsection 223.3 (1) may be released with the member's written consent. 2017, c. 10,
Sched. 1, s. 22.
Partial release by member,
(2.2) If a member releases only part of the advice provided to the member by the
Commissioner under paragraph 4, 5 or 6 of subsection 223.3 (1), the Commissioner
may release part or all of the advice without obtaining the member's consent. 2017, c.
10, Sched. 1, s. 22.
Other circumstances
(2.3) The Commissioner may disclose such information as in the Commissioner's
opinion is necessary,
(a) for the purposes of a public meeting under subsection 223.4.1 (8);
(b) in an application to a judge referred to in subsection 223.4.1 (15); or
(c) in the written reasons given by the Commissioner under subsection 223.4.1 (17).
2017, c. 10, Sched. 1, s. 22.
Section prevails
(3) This section prevails over the Municipal Freedom of Information and Protection of
Privacy Act. 2006, c. 32, Sched. A, s. 98.
Section Amendments with date in force(dimly)
Report to council
223.6 (1) If the Commissioner provides a periodic report to the municipality on his or her
activities, the Commissioner may summarize advice he or she has given but shall not
disclose confidential information that could identify a person concerned. 2006, c. 32,
Sched. A, s. 98.
Report about conduct
(2) If the Commissioner reports to the municipality or to a local board his or her opinion
about whether a member of council or of the local board has contravened the applicable
code of conduct, the Commissioner may disclose in the report such matters as in the
Commissioner's opinion are necessary for the purposes of the report. 2006, c. 32,
Sched. A, s. 98.
Publication of reports
(3) The municipality and each local board shall ensure that reports received from the
Commissioner by the municipality or by the board, as the case may be, are made
available to the public. 2006, c. 32, Sched. A, s. 98.
Section Amendments with date in force (d/m/y)
Testimony
223.7 Neither the Commissioner nor any person acting under the instructions of the
Commissioner is a competent or compellable witness in a civil proceeding in connection
with anything done under this Part. 2006, c. 32, Sched. A, s. 98.
Section Amendments with date in force(d/m/y)
Reference to appropriate authorities
223.8 If the Commissioner, when conducting an inquiry, determines that there are
reasonable grounds to believe that there has been a contravention of any other Act or of
the Criminal Code (Canada), the Commissioner shall immediately refer the matter to the
appropriate authorities and suspend the inquiry until any resulting police investigation
and charge have been finally disposed of, and shall report the suspension to
council. 2006, c. 32, Sched. A, s. 98.
Note: On a day to be named by proclamation of the Lieutenant Governor, section
223.8 of the Act is amended by striking out "of any other Act or" and substituting
"of any other Act, other than the Municipal Conflict of Interest Act, or". (See: 2017,
c. 10, Sched. 1, s. 23)
Section Amendments with date in force (d/m/y)
CLERKS DEPARTMENT
Inter-Departmental Memo
To: Mayor James M. Diodati & Members of Council
From: Bill Matson, Acting City Clerk
Date: June 13, 2017
Re: Relief to the City's Noise By-law
For the majority of the City, the municipality's Noise By-law prohibits the playing of
music and "the use of any electronic device or group of connected electronic devices
incorporating one or more loudspeakers", i.e., amplified music, after 9:00 p.m.
The By-law does allow Council to approve an exemption to the provisions.
With the summer season upon us, a number of such requests have been requested:
Requestor: Donna Laframboise
Event: 80th Birthday Party
Location: 5926 Valley Way
Date: June 24, 2017
Extension Time: 1:00 a.m.
The requestor has followed our protocol of notifying neighbouring properties of the
request for relief under the By-law and providing the Clerks contact information. No
objections have been received.
Council may approve all requests for relief or deal with them on a case by case basis.
Council can also impose any conditions or revise the requested times.
RECOMMENDAYION: For the Consideration of Council
A Great City ... For Generations To Come
CITY OF NIAGARA FALLS
By-law No. 2017-
A by-law to amend By-law No. 79-200, to introduce new definitions and general
provisions to prohibit certain uses on the Lands identified as the source intake area for
drinking water in the City of Niagara Falls (AM-2017-007).
THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS
ENACTS AS FOLLOWS:
1. The Lands that are the subject, of and affected by the provisions of this by-law
are described in Schedule 1 of this by-law and shall be referred to in this by-law
as the "Lands". Schedule 1 is a part of this by-law.
2. The purpose of this by-law is to amend the provisions of By-law No. 79-200 to
add new definitions and general provisions to prohibit certain uses on the Lands.
In the case of any conflict between a specific provision of this by-law and any
existing provision of By-law No. 79-200, the provisions of this by-law are to
prevail.
3. Section 2 — DEFINITIONS of By-law No. 79-200 is amended by adding the
following sections:
"2.5.0.1 "AGRICULTURAL SOURCE MATERIAL" means treated or untreated
materials, as defined by the Nutrient Management Act, other than
compost that meets the Compost Guidelines, or a commercial fertilizer,
if they are capable of being applied to land as nutrients.
2.28.1 "INDUSTRIAL EFFLUENT SYSTEM" means a system which conveys
and discharges the by-product from an industrial process that can
contain contaminant from non-domestic wastes.
2.28.2 "INTAKE PROTECTION ZONE" (IPZ) means an area vulnerable to
water quality or water quantity threats surrounding a municipal surface
water intake as delineated in a Sources Water Protection Plan.
2.58.1 "STORMWATER MANAGEMENT FACILITY" means a facility for the
treatment, retention, infiltration or control of stormwater.
2.63.1 "WASTE DISPOSAL SITE" means the application of untreated
septage, the storage, treatment and discharge of tailings from mines
and waste disposal sites as defined under Part V of the Ontario
Environmental Protection Act with respect to Source Water Protection.
2.63.2 "WASTEWATER TREATMENT PLANT' means the part of a sewage
works that treats or disposes of sewage but does not include the part
of the sewage works that collects or transmits sewage."
4. SECTION 4 — GENERAL PROVISIONS of By-law No. 79-200 is amended by
adding the following:
2
"4.8.A SOURCE WATER PROTECTION: Notwithstanding any other provisions of
the by-law to the contrary, the following uses shall be prohibited within the Intake
Protection Zone designated IPZ1 on Sheet E6 of Schedule "A" to this by-law:
(a) waste disposal site;
(b) stormwater management facility or the expansion of a storm water
management facility existing prior to June 13, 2017;
(c) industrial use not permitted by this by-law prior to June 13, 2017;
(d) commercial use not permitted by this by-law prior to June 13, 2017;
(e) wastewater treatment plant;
(f) industrial effluent system; and
(g) agricultural use, including the storage or application of agricultural source
material."
5. Sheet E6 of Schedule "A" of By-law No. 79-200 is amended by designating the
Lands IPZ1.
Passed this thirteenth day of June, 2017.
........................................................ .................................................
BILL MATSON, ACTING CITY CLERK JAMES M. DIODATI, MAYOR
First Reading: June 13, 2017
Second Reading: June 13, 2017
Third Reading: June 13, 2017
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CITY OF NIAGARA FALLS
By-law No. 2017 - 67
A by-law to amend By-law No. 2002-081, being a by-law to appoint City employees,
agents and third parties for the enforcement of provincial or municipal by-laws.
THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS
ENACTS AS FOLLOWS:
1 . By-law No. 2002=081 is amended by deleting Schedule "B° and °C, and that
Schedule "B" and "C° attached hereto shall be inserted in lieu thereof.
Passed this thirteenth day of June, 2017.
........................................................ ...........................................................
BILL MATSON, ACTING CITY CLERK JAMES M. DIODATI, MAYOR
First Reading: June 13, 2017.
Second Reading: June 13, 2017.
Third Reading: June 13, 2017.
SCHEDULE "B"
1. Municipal By-law Enforcement Officers:
Paul Brown
Tim Burshtein
Tom Craig
Ed Czban
John Grubich
Nick Pietrangelo
Dave Rogers
Philip Rudachuk
Bart Skiba
Brian Sparks
Salvatore Valeo
Ron Waters
Dan Wilson
SCHEDULE "C"
1. Parking By-law Enforcement Officers:
Marzenna Carrick
Marianne Catherwood
Julio Cavaliere
Bob Chambers
Don Ceci
Joe Corradi
Bill Crowder
Mario Digianni
Larry Downing
Madeline Fairfield
John Garvie
Lou Hussey
Norm Leonard
John MacLeod
Robert Mascia
Krista McGowan
Anthony Pinedo
Stewart Rodgers
Philip Rudachuk
Chris Russell
Dave Simpson
Randy Tait
Natalie Watson
Katelynn Whiteley
CITY OF NIAGARA FALLS
By-law No. 2017 -
A by-law to hereby authorize the Mayor and Treasurer to execute a Transfer Payment
Agreement between Her Majesty the Queen in right of the Province of Ontario,
represented by the Minister of Transportation for the Province of Ontario (the "Ministry")
and the City of Niagara Falls (the "Municipality") Related to Funding Provided by the
Province of Ontario (the 'Province") to the Municipality under the Public Transit
Infrastructure Fund (PTIF) Phase One (Ontario).
THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS
ENACTS AS FOLLOWS:
1. An Agreement, in the form attached hereto, authorizing the Mayor and Treasurer
to execute a Transfer Payment Agreement between Her Majesty the Queen in
right of the Province of Ontario, represented by the Minister of Transportation for
the Province of Ontario (the "Ministry") and the City of Niagara Falls (the
"Municipality") Related to Funding Provided by the Province of Ontario (the
"Province") to the Municipality under the Public Transit Infrastructure Fund (PTIF)
Phase One (Ontario), is hereby approved.
2. The Mayor and Treasurer are hereby authorized to execute the said Agreement
and all other documents that may be required for the purpose of carrying out the
intent of this by-law.
3. The Clerk is hereby authorized to affix the corporate seal thereto and to deliver
such documents.
Passed this thirteenth day of June, 2017.
........................................................... ......................................................
BILL MATSON, ACTING CITY CLERK JAMES M. DIODATI, MAYOR
First Reading: June 13, 2017.
Second Reading: June 13, 2017.
Third Reading: June 13, 2017.
PUBLIC TRANSIT INFRASTRUCTURE FUND (PTIF), PHASE ONE (ONTARIO)
TRANSFER PAYMENT AGREEMENT
THIS TRANSFER PAYMENT AGREEMENT for the Public Transit Infrastructure Fund (PTIF)
Phase One (Ontario) (the "Agreement"), made in quadruplicate; is effective as of the Effective
Date (both "Agreement" and "Effective Date' as defined in section A.1.2 (Definitions)).
BETWEEN:
Her Majesty the Queen in right of Ontario
as represented by the Minister of Transportation for the Province of
Ontario
(the "Province")
-and -
The Corporation of the City of Niagara Falls
(the "Recipient")
BACKGROUND
The Government of Canada announced in its Budget 2016 an investment of$120 billion in
infrastructure over 10 years, including $60 billion in new funding for public transit, green
infrastructure, and social infrastructure, to better meet the needs of Canadians and better
position Canada's economy for the future.
The 2016 Federal Budget proposes to provide $11.9 billion in transit infrastructure over five
years, which includes funding under a new federal program entitled Public Transit
Infrastructure Fund ("PTIF", as defined in section A.1.2 (Definitions)), to upgrade and improve
public transit systems. Phase One of the PTIF commits approximately $3.4 billion across
Canada, to be distributed on the basis of transit ridership.
Canada (as defined in section A.1.2 (Definitions)) has agreed, under the PTIF and
corresponding Bilateral Agreement (as defined in section A.1.2 (Definitions)) between
Canada and Ontario, to provide up to $1,486,680,000 for projects to help accelerate short
term investments while supporting the rehabilitation of transit systems and fund studies to
support longer term transit expansion plans in Ontario.
Under the Bilateral Agreement, the Province has agreed to identify projects, municipal and
provincial, and be responsible for the transfer of PTIF funds to eligible municipalities pursuant
to transfer payment agreements.
The Recipient has been allocated Maximum Funds (as defined in section A.1.2 (Definitions)).
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The Recipient has applied to the Province for PTIF funds to assist the Recipient in carrying
out the Project (as defined in section A.1.2 (Definitions) and further described in Schedule "C"
(Project Description, Budget and Timelines)), a public transit infrastructure project.
The Province has submitted, in accordance with the terms and conditions set out in the
Bilateral Agreement, the Project to Canada for approval.
Canada has approved the Project and agreed to provide PTIF funds for the Project.
The Agreement sets out the terms and conditions upon which PTIF funds, up to the
Maximum Funds, will be provided to the Recipient for the purpose of carrying out the Project
and the Recipient has agreed to carry out the Project.
CONSIDERATION
In consideration of the mutual covenants and agreements contained in the Agreement and
for other good and valuable consideration, the receipt and sufficiency of which is expressly
acknowledged, the Parties (as defined in section A.1.2 (Definitions)) agree as follows:
1.0 ENTIRE AGREEMENT
1.1 The Agreement, comprising of:
Schedule "A" - General Terms and Conditions
Schedule "B" - Project Specific Information
Schedule "C" - Project Description, Budget and Timelines
Sub-schedule "C.1" - Program Funding Request
Schedule "D" - Reporting
Schedule "E" - Eligible Expenditures and Ineligible Expenditures
Schedule "F" - Evaluation
Schedule "G" - Communications Protocol
Schedule "H" - Disposal of and Revenues from Assets
Schedule "I" - Aboriginal Consultation Protocol
Schedule "J" - Requests for Payment and Payment Procedures
Sub-schedule "J.1" - Form of Request for Payment Form
Sub-schedule "J.2" - Form of Certificate from Recipient
Sub-schedule "J.3" - Form of Declaration of Sub-project Completion
Sub-schedule "J.4" - Form of Certificate from Professional Engineer
Schedule "K' - Committee
Schedule "L" - Public Transit Infrastructure Fund (PTIF) Attestation Form, and
any amending agreement entered into as provided for in Article 3.0 (Amending the
Agreement),
constitutes the entire agreement between the Parties with respect to the subject
matter contained in the Agreement and supersedes all prior oral or written
representations and agreements.
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2.0 COUNTERPARTS
2.1 The Agreement may be executed in any number of counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same
instrument.
3.0 AMENDING THE AGREEMENT
3.1 Subject to sections C.2.2 (Amending Agreement for Minor Changes to the Project
Description, Budget and Timelines) and D.7.2 (Amending Agreement for Minor
Changes to the Reporting), the Agreement may only be amended by a written
agreement duly executed by the representatives of the Parties listed below.
4.0 ACKNOWLEDGEMENT
4.1 The Recipient acknowledges that:
(a) by receiving Funds (as defined in section A.1.2 (Definitions)) it may become
subject to legislation applicable to organizations that receive funding from the
Government of Ontario, including the Public Sector Salary Disclosure Act, 1996
(Ontario) and the Auditor General Act(Ontario);
(b) the Funds are:
(i) to assist the Recipient to carry out the Project and not to provide goods or
services to the Province or Canada; and
(ii) funding for the purposes of the Public Sector Salary Disclosure Act, 1996
(Ontario); and
(c) although the Agreement is between the Province and the Recipient, Canada is, in
respect of the rights, covenants, remedies, obligations, indemnities and benefits
(together referred to as 'Rights") undertaken or given to Canada in the
Agreement, a third-party beneficiary under the Agreement and is entitled to rely
upon and directly enforce those Rights as if Canada were a party to the
Agreement; and
(d) the Province and Canada, respectively, are not responsible for carrying out the
Project.
The Parties have executed the Agreement on the dates set out below.
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HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as
represented by the Minister of Transportation for the
Province of Ontario
Date Name: Steven Del Duca
Title: Minister
The Corporation of the City of Niagara Falls
Date Name: [insert the name]
Title: [insert the title, e.g., Mayor or Regional Chair]
I have authority to bind the Recipient.
Date Name: [insert the name]
Title: [insert the title, e.g., Clerk]
I have authority to bind the Recipient.
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SCHEDULE "A"
GENERAL TERMS AND CONDITIONS
A.1.0 INTERPRETATION AND DEFINITIONS
A.1.1 Interpretation. For the purposes of interpretation:
(a) words in the singular include the plural and vice-versa;
(b) words in one gender include all genders;
(c) the background and headings do not form part of the Agreement; they are for
information and reference only and will not affect the interpretation of the
Agreement;
(d) any reference to dollars or currency will be in Canadian dollars and currency;
(e) all accounting terms not otherwise defined in the Agreement have their ordinary
meanings; and
(f) in the event of a conflict or inconsistency between any of the requirements of:
(i) the main body of the Agreement and any of the requirements of a
schedule or a sub-schedule, the main body of the Agreement will prevail;
(ii) Schedule "A" (General Terms and Conditions) and any of the requirements
of another schedule or a sub-schedule, Schedule "A" (General Terms and
Conditions) will prevail; or
(iii) a schedule and any of the requirements of a sub-schedule, the schedule
will prevail.
A.1.2 Definitions. In the Agreement, the following terms have the following meanings:
"Aboriginal Community" as the meaning ascribed to it in section 1.1.1 (Definitions).
"Aboriginal Consultation Record" as the meaning ascribed to it in section 1.1.1
(Definitions).
"Agreement" means this Public Transit Infrastructure Fund (PTIF) Phase One
(Ontario) Transfer Payment Agreement entered into between the Province and the
Recipient as described in Article 1.0 (Entire Agreement).
"Asset" means any real or personal property or immovable or movable asset,
acquired, contracted, rehabilitated or improved, in whole or in part, with Funds.
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"Authorities" means any government authority, agency, body or department,
whether federal, provincial or municipal, having or claiming jurisdiction over the
Agreement or the Project, or both.
"Bilateral Agreement" means the Canada-Ontario Bilateral Agreement "Public
Transit Infrastructure Fund" entered into between Canada and Her Majesty the
Queen in right of Ontario, as represented by the Minister of Infrastructure, and made
on July 29, 2016.
"Budget" means the budget described in Sub-schedule "C.1" (Program Funding
Request).
"Business Day" means any working day, Monday to Friday inclusive, excluding
statutory and other holidays, namely: New Year's Day; Family Day; Good Friday;
Easter Monday; Victoria Day; Canada Day; Civic Holiday; Labour Day; Thanksgiving
Day; Remembrance Day; Christmas Day; Boxing Day and any other day on which
the Province has elected to be closed for business.
"Canada" means, unless the context requires otherwise, Her Majesty the Queen in
right of Canada.
"Committee" has the meaning ascribed to it in section A.32.1 (Establishment of
Committee).
"Contract" means a contract between the Recipient and a Third Party whereby the
Third Party agrees to supply goods or services, or both, for the Project in return for
financial consideration.
"Declaration of Sub-project Completion" means the Declaration of Sub-project
Completion attached as Sub-schedule "J.3" (Form of Declaration of Sub-project
Completion).
"Effective Date" means the date of signature by the last signing party to the
Agreement.
"Eligible Expenditures" means the costs of the Project incurred by the Recipient
and eligible for payment under the terms and conditions of the Agreement, and that
are further described in Schedule "E" (Eligible Expenditures and Ineligible
Expenditures).
"Environmental Laws" means all applicable federal, provincial or municipal laws,
regulations, by-laws, orders, rules, policies or guidelines respecting the protection of
the natural environment, public or occupational health or safety, and the
manufacture, importation, handling, transportation, storage, disposal and treatment
of environmental contaminants and include, without limitation, the Environmental
Protection Act(Ontario), Environmental Assessment Act (Ontario), Ontario Water
Resources Act(Ontario), Canadian Environmental Protection Act, 1999 (Canada),
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Canadian Environmental Assessment Act, 2092 (Canada), Fisheries Act(Canada)
and Navigation Protection Act(Canada).
"Event of Default" has the meaning ascribed to it in section A.14.1 (Event of
Default).
"Expiry Date" means the date on which the Agreement will expire and is the date
provided for in Schedule "B° (Project Specific Information).
"Final Progress Report" means the Final Progress Report described in Article
D.3.0 (Progress Reports and Final Progress Report).
"Funding Year" means:
(a) in the case of the first Funding Year, the period commencing on the Effective
Date and ending on the following March 31; and
(b) in the case of Funding Years subsequent to the first Funding Year,the period
commencing on April 1 following the end of the previous Funding Year and
ending on the following March 31.
"Funds" means the money the Province provides to the Recipient pursuant to the
Agreement.
"Holdback" means the Holdback described in and to be paid in accordance with
section A.4.14 (Retention of Contribution) and Article J.7.0 (Holdback).
"Indemnified Parties" means Her Majesty the Queen in right of Ontario and
Canada, respectively, their respective ministers, officers, servants, agents,
appointees and employees.
"Maximum Funds" means the maximum amount the Province will provide the
Recipient under the Agreement as provided for in Schedule "B" (Project Specific
Information).
"Notice" means any communication given or required to be given pursuant to the
Agreement.
"Notice Period" means the period of time within which the Recipient is required to
remedy an Event of Default, pursuant to paragraph A.14.3 (b), and includes any
such period or periods of time by which the Province extends that time in
accordance with section A.14.4 (Recipient Not Remedying).
"Outcomes Progress Reports" means the Outcomes Progress Reports described
in Article D.4.0 (Outcomes Progress Reports).
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"Parties" means the Province and the Recipient.
"Party" means either the Province or the Recipient.
"Program" means the program established by the Province to identify projects
under the PTIF and enter into agreements, including the Agreement, with recipients
of PTIF funds.
"Progress Reports" means the Progress Reports described in Article D.3.0
(Progress Reports and Final Progress Report).
"Project" means the undertaking described in Sub-schedule "C.1" (Program
Funding Request).
"Project Evaluation" means the project evaluation described in Article F.1.0
(Project Evaluation).
"Project Incrementality" means that the Funds are added to the funding already
planned by the Government of Ontario through its 2016 Budget or municipalities in
the Province of Ontario as part of provincial and municipal infrastructure plans, to
allow Ontario and municipalities to carry out more infrastructure projects or to
accelerate those that they had already planned.
"PTIF" means the Public Transit Infrastructure Fund established by Canada to help
accelerate short term investments while supporting the rehabilitation of transit
systems and funding studies to support longer term transit expansion plans.
"Reports" means the reports described in Schedule "D" (Reporting).
"Requirements of Law" means all applicable requirements, laws, statutes, codes,
acts, ordinances, approvals, orders, decrees, injunctions, by-laws, rules, regulations,
official plans, permits, licences, authorizations, directions, and agreements with all
Authorities, and includes the Environmental Laws.
"Sub-project" means a project described in Sub-schedule "C.1" (Program Funding
Request).
"Sub-project Completion" means when a Sub-project can be used for the purpose
for which it is intended, and all required Reports and other reports and documents,
including declarations and certificates, in respect of the Sub-project have been
submitted to the Province.
"Sub-project Completion Date" means the Sub-project completion date indicated
on the Declaration of Sub-project Completion.
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"Term" means the period of time described in section A.3.1 (Term).
"Third Party" means any legal entity, other than a Party, who supplies goods or
services, or both, to the Recipient for the Project.
"Timelines" means the Project schedule described in Sub-schedule "C.V (Program
Funding Request).
"Total Financial Assistance" means the total Project funding from all sources,
including funding from federal, provincial, territorial, and municipal sources, private
sources and in-kind contributions.
A.2.0 REPRESENTATIONS, WARRANTIES AND COVENANTS
A.2.1 General. The Recipient represents, warrants, and covenants that:
(a) it is, and will continue to be, a validly existing legal entity with full power to fulfill
its obligations under the Agreement;
(b) it has, and will continue to have, the experience and expertise necessary to
carry out the Project;
(c) it is in compliance with, and will continue to comply with, all Requirements of
Law related to any aspect of the Project, the Funds, or both; and
(d) unless otherwise provided for in the Agreement, any information the Recipient
provided to the Province in support of its request for funds (including information
relating to any eligibility requirements) was true and complete at the time the
Recipient provided it and will continue to be true and complete.
A.2.2 Execution of Agreement. The Recipient represents and warrants that it has:
(a) the full power and authority to enter into the Agreement; and
(b) taken all necessary actions to authorize the execution of the Agreement.
A.2.3 Governance. The Recipient represents, warrants and covenants that it has, will
maintain, in writing, and will follow:
(a) a code of conduct and ethical responsibilities for all persons at all levels of the
Recipient's organization;
(b) procedures to enable the Recipient's ongoing effective functioning;
Niagara Falls and Ontario PTIF TPA
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(c) decision-making mechanisms for the Recipient;
(d) procedures to enable the Recipient to manage Funds prudently and effectively;
(e) procedures to enable the Recipient to complete the Project successfully;
(f) procedures to enable the Recipient to identify risks to the completion of the
Project and strategies to address the identified risks, all in a timely manner;
(g) procedures to enable the preparation and submission of all Reports required
pursuant to Article A.7.0 (Reporting, Accounting and Review); and
(h) procedures to enable the Recipient to address such other matters as the
Recipient considers necessary to enable the Recipient to carry out its
obligations under the Agreement.
A.2.4 Supporting Proof. Upon the request of the Province, the Recipient will provide the
Province with proof of the matters referred to in this Article A.2.0 (Representations,
Warranties and Covenants).
A.3.0 TERM OF THE AGREEMENT
A.3.1 Term. The term of the Agreement will commence on the Effective Date and will
expire on the Expiry Date unless terminated earlier pursuant to Article A.12.0
(Termination on Notice), Article A.13.0 (Termination Where No Appropriation or
Funds from Canada), or Article A.14.0 (Event of Default, Corrective Action and
Termination for Default).
A.4.0 FUNDS AND CARRYING OUT THE PROJECT
A.4.1 Funds Provided. The Province will:
(a) provide the Recipient up to the Maximum Funds, which will be no greater than
50% of the total Eligible Expenditures, for the purpose of carrying out the
Project;
(b) provide the Funds to the Recipient in accordance with the request for payment
and payment procedures provided for in Schedule "J" (Requests for Payment
and Payment Procedures); and
(c) deposit the Funds into an account designated by the Recipient provided that the
account:
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(i) resides at a Canadian financial institution; and
(ii) is in the name of the Recipient.
A.4.2 Limitation on Payment of Funds. Despite section A.4.1 (Funds Provided):
(a) in addition to the other limitations under the Agreement on the payment of
Funds by the Province, the Province is not obligated to provide:
(i) any Funds to the Recipient unless the Recipient fulfils all of the special
conditions listed in section A.34.1 (Special Conditions); and
(ii) instalments of Funds unless the Province and Canada are satisfied with the
progress of the Project;
(b) the Province may adjust the amount of Funds it provides to the Recipient in any
Funding Year based upon the Province's assessment of the information the
Recipient provides to the Province pursuant to section A.7.1 (Preparation and
Submission); and
(c) if, pursuant to the Financial Administration Act(Ontario), the Province does not
receive the necessary appropriation from the Ontario Legislature or, under the
Bilateral Agreement, funds from Canada for any payment under the Agreement,
the Province is not obligated to make any such payment, and, as a
consequence, the Province may:
(i) reduce the amount of Funds and, in consultation with the Recipient, change
the Project or Budget, or both; or
(ii) terminate the Agreement pursuant to section A.13.1 (Termination Where No
Appropriation or Funds from Canada).
A.4.3 Use of Funds and Carry Out the Project. The Recipient will do all of the following:
(a) carry out the Project;
(b) use the Funds only for the purpose of carrying out the Project;
(c) spend the Funds only in accordance with the Budget; and
(d) not use the Funds to cover any Eligible Expenditure that has or will be funded or
reimbursed by one or more of any third party, any ministry, department, agency,
or organization of the Government of Ontario or the Government of Canada.
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AAA Province's and Canada's Roles Limited to Providing Funds. The Parties
acknowledge that the Province's role in a Project is limited to providing PTIF funds it
receives from Canada to the Recipient for the Project, and that the Province and
Canada will have no involvement in the implementation of the Project or its operation.
The Province and Canada are neither decision-makers nor administrators of the
Project.
A.4.5 Interest Bearing Account. If the Province provides Funds to the Recipient before
the Recipient's immediate need for the Funds, the Recipient will place the Funds in
an interest bearing account in the name of the Recipient at a Canadian financial
institution.
A.4.6 Interest. If the Recipient earns any interest on the Funds, the Province may:
(a) deduct an amount equal to the interest from any further instalments of Funds; or
(b) demand from the Recipient the repayment of an amount equal to the interest.
A.4.7 Maximum Funds. The Recipient acknowledges that:
(a) the Funds available to it pursuant to the Agreement will not exceed the
Maximum Funds;
(b) if Canada's total contribution from all federal sources, including the Funds,
towards the Project exceeds 50% of the Project's total Eligible Expenditures,
the Province may recover the excess from the Recipient or reduce the
contribution under the Agreement by an amount equal to the excess; and
(c) if the Total Financial Assistance received or due in respect of the total Project
costs exceeds 100% of the total Project costs, the Province may, up to the
Maximum Funds, recover the excess from the Recipient or reduce the
contribution under the Agreement by an amount equal to the excess.
A.4.8 Disclosure of Other Financial Assistance and Adjustments. The Recipient will
inform the Province promptly of all financial assistance received for the Project.
A.4.9 Rebates, Credits and Refunds. The Recipient acknowledges that the amount of
Funds available to it pursuant to the Agreement is based on the actual costs to the
Recipient to carry out the Project, less any costs (including taxes) for which the
Recipient has received, will receive, or is eligible to receive, a rebate, credit or
refund.
A.4.10 Recipient's Acknowledgement of Responsibility for Project. The Recipient will
assume full responsibility for the Project including, without limitation:
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(a) complete, diligent and timely Project implementation within the costs and
timelines specified in the Agreement and in accordance with all other terms and
conditions of the Agreement;
(b) all the costs of the Project including, without limitation, unapproved
expenditures and overruns, if any;
(c) subsequent operation, maintenance, repair, rehabilitation, demolition or
reconstruction, as required and as per appropriate standards, and any related
costs for the full lifecycle of the Project; and
(d) the responsibility for undertaking, or cause to be undertaken, the engineering
and construction work in accordance with industry standards.
A.4.11 Increase in Project Costs. If, at any time during the Term, the Recipient determines
that it will not be possible to complete the Project unless it expends amounts in
excess of all funding available to it (a "Shortfall'), the Recipient will immediately
notify the Province of that determination. If the Recipient so notifies the Province, it
will, within 30 days of a request from the Province, provide a summary of the
measures that it proposes to remedy the Shortfall. If the Province is not satisfied that
the measures proposed will be adequate to remedy the Shortfall, then the Province
may exercise one or more of the remedies available to it pursuant to section A.14.4
(Recipient Not Remedying).
A.4.12 Recipient's Request for Payment and Payment Procedures. The Recipient
agrees to submit its requests for payment in accordance with the payment
procedures provided for in Schedule "J° (Requests for Payment and Payment
Procedures).
A.4.13 Project Incrementality. The Recipient acknowledges, as attested in the Public
Transit Infrastructure Fund (PTIF) Attestation Form attached as Schedule 1" (Public
Transit Infrastructure Fund (PTIF) Attestation Form), that funding for the Project is
conditional upon the Project meeting the definition of Project Incrementality.
A.4.14 Retention of Contribution. The Province will retain a minimum of 10% of the funding
for the Project ("Holdback"). The Province will release the amount retained when:
(a) the Recipient fulfils all of its obligations under the Agreement; and
(b) the Parties have carried out a final reconciliation of all requests for payments
and payments in respect of the Project and made any adjustments required in
the circumstances.
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A.5.0 RECIPIENT'S ACQUISITION OF GOODS OR SERVICES, RELATED CONTRACTS
AND DISPOSAL OF ASSETS
A.5.1 Acquisition. If the Recipient acquires goods, services, or both with the Funds, it will:
(a) do so through a process that promotes the best value for money; and
(b) comply to the extent applicable with:
(i) its policies and procedures; and
(ii) trade agreements, including the Agreement on Internal Trade and the
Trade and Cooperation Agreement between Ontario and Quebec.
A.5.2 Contract Provisions. The Recipient will ensure that all Contracts are consistent with
and incorporate the relevant provisions of the Agreement. More specifically but
without limiting the generality of the foregoing, the Recipient agrees to include
provisions in all Contracts to ensure:
(a) that proper and accurate accounts and records are kept and maintained as
described in the Agreement including, but not limited to, in paragraph A.7.2(a);
(b) compliance with all applicable Requirements of Law including, without
limitation, labour and human rights legislation; and
(c) the respective rights of the Province and Canada, and any authorized
representative or independent auditor identified by the Province or Canada, and
the Auditor General of Ontario and the Auditor General of Canada to inspect
and audit the terms of any Contract, record and account respecting the Project
and have free and timely access to the Project sites, facilities and any
documentation, as contemplated pursuant to section A.7.3 (Inspection), are
secured.
A.5.3 Disposal. The Recipient agrees that any disposal of Asset including, without
limitation, the sale, lease, encumbrance or any other disposition of any Asset, will be
in accordance with the terms and conditions provided for in Schedule "H" (Disposal of
and Revenues from Assets).
A.6.0 CONFLICT OF INTEREST
A.6.1 No Conflict of Interest. The Recipient will carry out the Project and use the Funds
without an actual, potential, or perceived conflict of interest.
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A.6.2 Conflict of Interest Includes. For the purposes of this Article A.6.0 (Conflict of
Interest), a conflict of interest includes any circumstances where:
(a) the Recipient; or
(b) any person who has the capacity to influence the Recipient's decisions,
has outside commitments, relationships, or financial interests that could, or could be
seen to, interfere with the Recipient's objective, unbiased and impartial judgment
relating to the Project, the use of the Funds, or both.
A.6.3 Disclosure to Province. The Recipient will:
(a) disclose to the Province, without delay, any situation that a reasonable person
would interpret as an actual, potential, or perceived conflict of interest; and
(b) comply with any terms and conditions that the Province may prescribe as a
result of the disclosure.
A.7.0 REPORTING, ACCOUNTING AND REVIEW
A.7.1 Preparation and Submission. The Recipient will:
(a) submit to the Province at the address referred to in section A.18.1 (Notice in
Writing and Addresses), all Reports in accordance with the timelines and
content requirements provided for in Schedule "Y (Reporting), or in a form as
specified by the Province from time to time;
(b) submit to the Province at the address referred to in section A.18.1 (Notice in
Writing and Addresses), any other reports as may be requested by the Province
in accordance with the timelines and content requirements specified by the
Province;
(c) ensure that all Reports and other reports are completed to the satisfaction of the
Province; and
(d) ensure that all Reports and other reports are signed on behalf of the Recipient
by an authorized representative of the Recipient.
A.7.2 Record Maintenance and Audit.
(a) The Recipient will keep and maintain:
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(i) proper, accurate, and in a manner consistent with generally accepted
accounting principles financial accounts and records, including but not
limited to its contracts, invoices, statements, receipts, and vouchers, in
respect of the Funds or otherwise to the Project;
(ii) all non-financial documents and records relating to the Funds or otherwise
to the Project; and
(iii) the accounts, records and other documents described in paragraphs
A.7.2(a)(i) and (ii) for at least seven years after the expiry or termination of
the Agreement.
A.7.3 Inspection. The Province, Canada, any authorized representative, or independent
auditor identified by the Province or Canada may, at the Province's or Canada's
respective expense, upon 24 hours' Notice to the Recipient and during normal
business hours, enter upon the Recipient's premises to review the progress of the
Project and the Recipient's allocation and expenditure of the Funds and, for these
purposes, the Province, Canada, any authorized representative, or independent
auditor identified by the Province or Canada may take one or more of the following
actions:
(a) inspect and copy the records and documents referred to in section A.7.2
(Record Maintenance and Audit);
(b) remove any copies made pursuant to paragraph A.7.3(a) from the Recipient's
premises; and
(c) conduct an audit or investigation of the Recipient in respect of the expenditure
of the Funds, the Project, or both.
A.7.4 Disclosure. To assist in respect of the rights provided for in section A.7.3
(Inspection), the Recipient will disclose any information requested by the Province,
Canada, any authorized representative, or any independent auditor identified by the
Province or Canada, and will do so in the form requested by the Province, Canada,
any authorized representative, or any independent auditor identified by the Province
or Canada, as the case may be.
A.7.5 No Control of Records. No provision of the Agreement will be construed so as to
give the Province or Canada any control whatsoever over the Recipient's records.
A.7.6 Auditor General (Ontario/Canada). For greater certainty, the Province's rights
under this Article A.7.0 (Reporting, Accounting and Review) are in addition to any
rights provided to the Auditor General of Ontario pursuant to section 9.1 of the
Auditor General Act(Ontario) and the Auditor General of Canada pursuant to section
7.1 of the Auditor General Act (Canada).
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A.7.7 Third Parties. The Recipient shall coordinate access with any Third Party for the
purpose of the inspections and audits described in section A.7.3 (Inspection).
A.7.8 Project Evaluation. The Recipient agrees to conduct and submit to the Province or
Canada, as applicable, Project-related information following the evaluation
procedures provided for in Article F.1.0 (Project Evaluation).
A.7.9 Calculations. The Recipient will make all calculations and prepare all financial data
to be submitted in accordance with the generally accepted accounting principles in
effect in Canada. These will include, without limitation, those principles and
standards approved or recommended from time to time by the Canadian Institute of
Chartered Accountants or the Public Sector Accounting Board, as applicable, or any
successor institute, applied on a consistent basis.
A.7.10 Adverse Fact or Event. The Recipient will inform the Province immediately of any
fact or event of which it is aware and that will compromise wholly, or in part, the
Project.
A.8.0 COMMUNICATIONS REQUIREMENTS
A.8.1 Acknowledgement of Support. Unless otherwise directed by the Province, the
Recipient will acknowledge the support for the Project as provided for in Schedule
"G" (Communications Protocol).
A.9.0 FIPPA, MFIPPA, AIA AND INFORMATION SHARING WITH CANADA
A.9.1 FIPPA. The Recipient acknowledges that the Province is bound by the Freedom of
Information and Protection of Privacy Act (Ontario) and that any information provided
to the Province in connection with the Project or otherwise in connection with the
Agreement may be subject to disclosure in accordance with that Act.
A.9.2 MFIPPA. The Province acknowledges that the Recipient is bound by the Municipal
Freedom of Information and Protection of Privacy Act(Ontario) and that any
information provided to the Recipient in connection with the Project or otherwise in
connection with the Agreement may be subject to disclosure in accordance with that
Act.
A.9.3 AIA. The Recipient acknowledges that Canada is bound by the Access to Information
Act (Canada) and that any information provided to Canada by either the Province or
the Recipient in connection with the Project or otherwise in connection with the
Agreement may be subject to disclosure in accordance with that Act.
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A.9.4 Information Sharing with Province and Canada. The Recipient acknowledges
that:
(a) the Province or Canada may request additional information from the Recipient
including, without limitation, information for the purpose of any determination
under Article A.30.0 (Environmental Assessment) and Article A.31.0 (Aboriginal
Consultation); and
(b) the Province may share any information it receives from the Recipient pursuant
to the Agreement with Canada.
A.10.0 INDEMNITY
A.10.1 Indemnification of the Province and Canada. The Recipient hereby agrees to
indemnify and hold harmless the Indemnified Parties from and against any and all
liability, loss, costs, damages, expenses (including legal, expert, and consultant fees),
causes of action, actions (whether in contract, tort, or otherwise), claims, demands,
lawsuits, or other proceedings, by whomever made, sustained, incurred, 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, in any way arising out of(whether directly or indirectly) or in connection
with the Project, the Recipient or the Agreement (collectively, "Action"), unless such
Action is solely caused by the negligence or wilful misconduct of an Indemnified Party
in the performance of his or her duty.
A.10.2 Recipient's Participation. The Recipient will, at its expense, to the extent
requested by the Province or Canada, or both, participate in or conduct the defence
of any proceeding against any Indemnified Parties and any negotiations for their
settlement.
A.10.3 Province's Election. The Province or Canada, or both, may elect to participate in or
conduct the defence of any proceeding by providing Notice to the Recipient of such
election without prejudice to any other rights or remedies of the Province under the
Agreement or Canada under the Bilateral Agreement, at law or in equity. The
Province, Canada or the Recipient, as applicable, participating in the defence will do
so by actively participating with the other's counsel.
A.10.4 Settlement Authority. The Recipient will not enter into a settlement of any
proceeding against any Indemnified Parties unless the Recipient has obtained the
Province's or Canada's, as applicable, prior written approval or waiver for this
requirement. If the Recipient is requested by the Province or Canada to participate in
or conduct the defence of any proceeding, the Province or Canada, as applicable,
will co-operate with and assist the Recipient to the fullest extent possible in the
proceeding and any related settlement negotiations.
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A.10.5 Recipient's Co-operation. If the Province or Canada conducts the defence of any
proceedings, the Recipient will co-operate with and assist the Province or Canada,
as applicable, to the fullest extent possible in the proceedings and any related
settlement negotiations.
A.10.6 Province and Canada Limitation of Liability. The Province and Canada,
respectively, will not be liable for any direct, indirect, consequential, exemplary or
punitive damages, regardless of the form of action, whether in contract, tort or
otherwise, arising from any reduction or termination of funding in response to the
reduction of any appropriation or departmental funding levels in respect of transfer
payments, PTIF or otherwise, as evidenced by any appropriation act or the provincial
or federal Crown's main or supplementary estimates expenditures.
AA 1.0 INSURANCE
A.11.1 Recipient's Insurance. The Recipient represents, warrants, and covenants that it
has, and will maintain 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 $2,000,000.00 per occurrence and policy aggregate. The policy will
include the following:
(a) 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;
(b) a cross-liability clause;
(c) contractual liability coverage; and
(d) a 30-day written notice of cancellation.
A.11.2 Proof of Insurance. The Recipient will:
(a) provide to the Province, either:
(i) certificates of insurance that confirm the insurance coverage as provided in
section A.11.1 (Recipient's Insurance); or
(ii) other proof that confirms the insurance coverage as provided for in section
A.11.1 (Recipient's Insurance); and
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(b) upon the request of the Province, provide to the Province a copy of any
insurance policy.
A.12.0 TERMINATION ON NOTICE
A.12.1 Termination on Notice. The Province may terminate the Agreement at any time
without liability, penalty, or costs upon giving at least 30 days' Notice to the
Recipient.
A.12.2 Consequences of Termination on Notice by the Province. If the Province
terminates the Agreement pursuant to section A.12.1 (Termination on Notice), the
Province may take one or more of the following actions:
(a) cancel all further instalments of Funds;
(b) demand the repayment of any Funds remaining in the possession or under the
control of the Recipient; and
(c) determine the reasonable costs for the Recipient to wind down the Project, and
do either or both of the following:
(i) permit the Recipient to offset such costs against the amount the Recipient
owes pursuant to paragraph A.1 2.2(b); and
(ii) subject to section A.4.7 (Maximum Funds), provide Funds to the Recipient
to cover such costs.
A.13.0 TERMINATION WHERE NO APPROPRIATION OR FUNDS FROM CANADA
A.13.1 Termination Where No Appropriation or Funds from Canada. If, as provided for
in paragraph A.4.2(c), the Province does not receive the necessary appropriation
from the Ontario Legislature or funds from Canada, as applicable, for any payment
the Province is to make pursuant to the Agreement, the Province may terminate the
Agreement immediately without liability, penalty, or costs by giving Notice to the
Recipient.
A.13.2 Consequences of Termination Where No Appropriation or Funds from Canada.
If the Province terminates the Agreement pursuant to section A.13.1 (Termination
Where No Appropriation or Funds from Canada), the Province may take one or more
of the following actions:
(a) cancel all further instalments of Funds;
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(b) demand the repayment of any Funds remaining in the possession or under the
control of the Recipient; and
(c) determine the reasonable costs for the Recipient to wind down the Project and
permit the Recipient to offset such costs against the amount owing pursuant to
paragraph A.13.2(b).
A.13.3 No Additional Funds. For greater clarity, if the costs determined pursuant to
paragraph A.13.2(c) exceed the Funds remaining in the possession or under the
control of the Recipient, the Province will not provide additional Funds to the
Recipient.
A.14.0 EVENT OF DEFAULT, CORRECTIVE ACTION, AND TERMINATION FOR
DEFAULT l
A.14.1 Event of Default. If, in the opinion of the Province, the Recipient breaches any
representation, warranty, covenant, or other material term of the Agreement,
including failing to do any of the following in accordance with the terms and
conditions of the Agreement:
(a) carry out the Project;
(b) use or spend Funds; or
(c) provide, in accordance with section A.7.1 (Preparation and Submission),
Reports or such other reports as may have been requested pursuant to
paragraph A.7.1(b),
this event will constitute an Event of Default.
A.14.2 Consequences of Events of Default and Corrective Action. If an Event of Default
occurs, the Province may, at any time, take one or more of the following actions:
(a) initiate any action the Province considers necessary in order to facilitate the
successful continuation or completion of the Project;
(b) provide the Recipient with an opportunity to remedy the Event of Default;
(c) suspend the payment of Funds for such period as the Province determines
appropriate;
(d) reduce the amount of the Funds;
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(e) cancel all further instalments of Funds;
(f) demand the repayment of any Funds remaining in the possession or under the
control of the Recipient;
(g) demand the repayment of an amount equal to any Funds the Recipient used,
but did not use in accordance with the Agreement;
(h) demand the repayment of an amount equal to any Funds the Province provided
to the Recipient; and
(i) terminate the Agreement at any time, including immediately, without liability,
penalty or costs to the Province upon giving Notice to the Recipient.
A.14.3 Opportunity to Remedy. If, in accordance with paragraph A.14.2(b), the Province
provides the Recipient with an opportunity to remedy the Event of Default, the
Province will provide Notice to the Recipient of:
(a) the particulars of the Event of Default; and
(b) the Notice Period.
A.14.4 Recipient Not Remedying. If the Province has provided the Recipient with an
opportunity to remedy the Event of Default pursuant to paragraph A.14.2(b), and:
(a) the Recipient does not remedy the Event of Default within the Notice Period;
(b) it becomes apparent to the Province that the Recipient cannot completely
remedy the Event of Default within the Notice Period; or
(c) the Recipient is not proceeding to remedy the Event of Default in a way that is
satisfactory to the Province,
the Province may extend the Notice Period, or initiate any one or more of the actions
provided for in paragraphs A.14.2(a), (c), (d), (e), (f), (g), (h), and (i).
A.14.5 When Termination Effective. Termination under this Article A.14.0 (Event of
Default, Corrective Action and Termination for Default) will take effect as provided for
in the Notice.
A.15.0 FUNDS AT THE END OF A FUNDING YEAR
A.15.1 Funds at the End of a Funding Year. Without limiting any rights of the Province
under Article A.14.0 (Event of Default, Corrective Action and Termination for Default),
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if the Recipient has not spent all of the Funds allocated for the Funding Year as
provided for in the Budget, the Province may take one or both of the following
actions:
(a) demand the return of the unspent Funds; and
(b) adjust the amount of any further instalments of Funds accordingly.
A.16.0 FUNDS UPON EXPIRY
A.16.1 Funds Upon Expiry. The Recipient will, upon expiry of the Agreement, return to the
Province any Funds remaining in its possession or under its control.
A.17.0 REPAYMENT
A.17.1 Repayment of Overpayment. If at any time the Province provides Funds in excess
of the amount to which the Recipient is entitled under the Agreement, the Province
may:
(a) deduct an amount equal to the excess Funds from any further instalments of
Funds; or
(b) demand that the Recipient pay an amount equal to the excess Funds to the
Province.
A.17.2 Debt Due. If, pursuant to the Agreement:
(a) the Province demands the payment of any Funds or an amount equal to any
Funds from the Recipient; or
(b) the Recipient owes any Funds or an amount equal to any Funds to the
Province, whether or not their return or repayment has been demanded by the
Province,
such Funds or other amount will be deemed to be a debt due and owing to the
Province by the Recipient, and the Recipient will pay or return the amount to the
Province immediately, unless the Province directs otherwise.
A.17.3 Interest Rate. The Province may charge the Recipient interest on any money owing
by the Recipient at the then current interest rate charged by the Province of Ontario
on accounts receivable.
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A.17.4 Payment of Money to Province. The Recipient will pay any money owing to the
Province by cheque payable to the "Ontario Minister of Finance" and delivered to the
Province at the address provided for in Schedule "B" (Project Specific Information) for
the contact information for the purposes of Notice to the Province.
A.17.5 Failure to Repay. Without limiting the application of section 43 of the Financial
Administration Act (Ontario), if the Recipient fails to repay any amount owing under
the Agreement, Her Majesty the Queen in right of Ontario may deduct any unpaid
amount from any money payable to the Recipient by Her Majesty the Queen in right
of Ontario.
A.18.0 NOTICE
A.18.1 Notice in Writing and Addresses. Notice will be in writing and will be delivered by
email, postage-prepaid mail, personal delivery, or fax, and will be addressed to the
Province and the Recipient respectively as provided for in Schedule "B" (Project
Specific Information), oras either Party later designates to the other by Notice.
A.18.2 Notice Given. Notice will be deemed to have been given:
(a) in the case of postage-prepaid mail, five Business Days after the Notice is
mailed; or
(b) in the case of email, personal delivery or fax, one Business Day after the Notice
is delivered.
A.18.3 Postal Disruption. Despite paragraph A.18.2(a), in the event of a postal disruption:
(a) Notice by postage-prepaid mail will not be deemed to be received; and
(b) the Party giving Notice will provide Notice by email, personal delivery or by fax.
A.19.0 CONSENT BY PROVINCE AND COMPLIANCE BY RECIPIENT
A.19.1 Consent. When the Province provides its consent pursuant to the Agreement, it may
impose any terms and conditions on such consent and the Recipient will comply with
such terms and conditions.
A.20.0 SEVERABILITY OF PROVISIONS
A.20.1 Invalidity or Unenforceability of Any Provision. The invalidity or unenforceability
of any provision of the Agreement will not affect the validity or enforceability of any
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other provision of the Agreement. Any invalid or unenforceable provision will be
deemed to be severed.
A.21.0 WAIVER
A.21.1 Waivers in Writing. If a Party fails to comply with any term of the Agreement, that
Party may only rely on a waiver of the other Party if the other Party has provided a
written waiver in accordance with the Notice provisions in Article A.18.0 (Notice).
Any waiver must refer to a specific failure to comply and will not have the effect of
waiving any subsequent failures to comply.
A.22.0 INDEPENDENT PARTIES
A.22.1 Parties Independent. The Recipient is not an agent, joint venturer, partner, or
employee of the Province, and the Recipient will not represent itself in any way that
might be taken by a reasonable person to suggest that it is, or take any actions that
could establish or imply such a relationship.
A.23.0 ASSIGNMENT OF AGREEMENT OR FUNDS
A.23.1 No Assignment. The Recipient will not, without the prior written consent of the
Province, assign any of its rights or obligations under the Agreement.
A.23.2 Agreement Binding. All rights and obligations contained in the Agreement will
extend to and be binding on the Parties' respective heirs, executors, administrators,
successors and permitted assigns.
A.24.0 GOVERNING LAW
A.24.1 Governing Law. The Agreement and the rights, obligations and relations of the
Parties will be governed by and construed in accordance with the laws of the
Province of Ontario and the applicable federal laws of Canada. Any actions or
proceedings arising in connection with the Agreement will be conducted in the courts
of Ontario, which will have exclusive jurisdiction over such proceedings.
A.25.0 FURTHER ASSURANCES
A.25.1 Agreement into Effect. The Recipient will provide such further assurances as the
Province may request from time to time with respect to any matter to which the
Agreement pertains, and will otherwise do or cause to be done all acts or things
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necessary to implement and carry into effect the terms and conditions of the
Agreement to their full extent.
A.26.0 JOINT AND SEVERAL LIABILITY
A.26.1 Joint and Several Liability. Where the Recipient is comprised of more than one
entity, the Recipient agrees that, and will require the same of each entity, all such
entities will be jointly and severally liable to the Province for the fulfillment of the
obligations of the Recipient under the Agreement.
A.27.0 RIGHTS AND REMEDIES CUMULATIVE
A.27.1 Rights and Remedies Cumulative. The rights and remedies of the Province under
the Agreement are cumulative and are in addition to, and not in substitution for, any
of its rights,and remedies provided by law or in equity.
A.28.0 FAILURE TO COMPLY WITH OTHER AGREEMENTS
A.28.1 Other Agreements. If the Recipient:
(a) has failed to comply with any term, condition, or obligation under any other
agreement with Her Majesty the Queen in right of Ontario or one of Her
agencies (a "Failure");
(b) has been provided with notice of such Failure in accordance with the
requirements of such other agreement;
(c) has, if applicable, failed to rectify such Failure in accordance with the
requirements of such other agreement; and
(d) such Failure is continuing,
the Province may suspend the payment of Funds for such period as the Province
determines appropriate.
A.29.0 SURVIVAL
A.29.1 Survival. The Parties' rights and obligations, which by their nature, extend beyond
the termination of the Agreement including, without limitation, the following Articles,
sections and paragraphs, and all applicable cross-referenced Articles, sections,
paragraphs, schedules, and sub-schedules, will survive any expiry or termination of
the Agreement and continue in full force and effect: Articles 1.0 (Entire Agreement),
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3.0 (Amending the Agreement), A.1.0 (Interpretation and Definitions) and any other
applicable definitions, paragraph A.4.2(c), sections A.4.6 (Interest), A.5.3 (Disposal),
A.7.1 (Preparation and Submission) (to the extent that the Recipient has not provided
the Reports or other reports as may have been requested to the satisfaction of the
Province), A.7.2 (Record Maintenance and Audit), A.7.3 (Inspection), A.7.4
(Disclosure), A.7.5 (No Control of Records), A.7.6 (Auditor General
(Ontario/Canada), A.7.7 (Third Parties), A.7.8 (Project Evaluation), A.7.9
(Calculations), Articles A.8.0 (Communications Requirements), A.10.0 (Indemnity),
sections A.12.2 (Consequences of Termination on Notice by the Province), A.13.2
(Consequences of Termination Where No Appropriation or Funds from Canada),
A.13.3 (No Additional Funds), A.14.1 (Events of Default), paragraphs A.14.2(d), (e),
(f), (g) and (h), Articles A.16.0 (Funds Upon Expiry), A.17.0 (Repayment), A.18.0
(Notice), and A.20.0 (Severability of Provisions), section A.23.2 (Agreement Binding),
and Articles A.24.0 (Governing Law), A.26.0 (Joint and Several Liability), A.27.0
(Rights and Remedies Cumulative), A.28.0 (Failure to Comply with Other
Agreements), and A.29.0 (Survival).
A.30.0 ENVIRONMENTAL ASSESSMENT
A.30.1 Responsibility of FederallResponsible Authority. Without limitation to the
Recipient's obligations for compliance with Environmental Laws and for greater
clarity, the Recipient agrees to ensure that the responsibility of the federal authority
or responsible authority, or both, under the Canadian Environmental Assessment
Act, 2012 and applicable agreements between Canada and Aboriginal groups are
met and continues to be met to Canada's satisfaction.
A.30.2 Funding Conditional upon Meeting Environmental Assessment Requirements.
The Recipient agrees that the funding under the Agreement is conditional upon the
Province or Canada or both, as applicable, being satisfied that the requirements
under this Article (Environmental Assessment) have been met.
A.31.0 ABORIGINAL CONSULTATION
A.31.1 Aboriginal Consultation Protocol. The Parties agree to be bound by the terms and
conditions of the Aboriginal Consultation Protocol provided for in Schedule "I"
(Aboriginal Consultation Protocol).
A.31.2 Funding Conditional upon Meeting Aboriginal Consultation Obligations. The
Recipient agrees that.the funding under the Agreement is conditional upon the
Province or Canada, or both, being satisfied that their respective obligations with
respect to the legal duty to consult and, if applicable, accommodate Aboriginal
Communities have been met.
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A.32.0 COMMITTEE
A.32.1 Establishment of Committee. The Province may, at its sole discretion, require the
establishment of a committee to oversee the Agreement (the "Committee").
A.32.2 Notice of Establishment of Committee. Upon Notice from the Province, at the
Province's sole discretion, the Parties agree to hold an initial meeting to establish, in
accordance with Schedule "K" (Committee), the Committee described in section
A.32.1 (Establishment of Committee).
A.33.0 DISPUTE RESOLUTION
A.33.1 Contentious Issues. The Parties will keep each other informed of any issues that
could be contentious.
A.33.2 Examination by the Committee and Parties. The Parties agree, if a contentious
issue arises and a Committee has been established under section A.32.1
(Establishment of Committee), to refer the contentious issue to the Committee for
examination. In the absence of a Committee, the Parties agree to examine the
contentious issue.
A.33.3 Potential Dispute Resolution by Committee. The Parties agree that the
Committee or the Parties will, as applicable and in good faith, reasonably attempt to
resolve potential disputes as soon as possible and, in any event, within, if the
Committee, 30 Business Days, or, if the Parties, 90 Business Days of receipt of,a
Notice of a contentious issue.
A.33.4 Potential Dispute Resolution by the Parties. If the Committee cannot agree on a
resolution, the matter will be referred to the Parties for resolution. The Parties will
provide a decision within 60 Business Days of the Notice.
A.33.5 Exploration of Mechanisms for Dispute Resolutions. Where the Parties cannot
agree on a resolution, the Parties may explore any alternative dispute resolution
mechanisms available to them to resolve the issue.
A.33.6 Suspension of Payments. Any payments related to any contentious issue or
dispute raised by either Party may be suspended by the Province, together with the
obligations related to such issue, pending resolution.
A.34.0 SPECIAL CONDITIONS
A.34.1 Special Conditions. The Province's funding under the Agreement is conditional
upon,
(a) on or before the Effective Date, the Recipient providing the Province with:
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(i) a copy of the by-law(s) and, if applicable, any council resolution(s)
authorizing the Agreement and naming the authorized representatives of
the Recipient for the Agreement;
(ii) the certificate of insurance or other proof as the Province may request
pursuant to section A.11.2 (Proof of Insurance); and
(iii) the necessary information, including a void cheque or a bank letter, to
facilitate an electronic funds transfer to an interest bearing account in the
name of the Recipient at a Canadian financial institution.
(b) prior to submitting a request for payment under the Agreement, the Recipient
providing the Province with written confirmation that the Recipient,
(i) is in compliance with the Environmental Laws, including the Recipient's
obligation under Article A.30.0 (Environmental Assessment), and obtained
all necessary approvals and permits;
(ii) has, if applicable, met the requirements under Article A.31.0 (Aboriginal
Consultation); and
(iii) has entered into a legally binding agreement that is consistent with and
incorporates the relevant provisions of the Agreement with, if the Recipient
does not own the land on which the Project is carried out, each of the land-
owners upon which the Project is carried out.
For greater certainty, if the Province provides any Funds to the Recipient prior to any
of the conditions set out in this Article A.34.0 (Special Conditions) having been met,
and has not otherwise waived compliance with such condition in writing, the
Province may exercise one or more of the remedies available to it pursuant to
section A.14.4 (Recipient Not Remedying).
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SCHEDULE "B"
PROJECT SPECIFIC INFORMATION
Maximum Funds $ $3,403,108.80
Expiry Date March 31, 2020
Contact information for the Address: Public Transit Infrastructure Fund Phase One
purposes of Notice to the Municipal Transit Policy Office
Province Ontario Ministry of Transportation
777 Bay Street, 301h Floor
Toronto ON M7A 2J8
Phone: 416-585-6312
Fax: 416-585-7343
Email: PTIF@ontario.ca
Contact information for the Position: [insert missing information]
purposes of Notice to the Address: [insert missing information]
Recipient Phone: [insert missing information]
Fax: [insert missing information]
Email: [insert missing information]
Authorized Representative Position: Manager, Municipal Transit Policy Office
of the Province for the
purpose of sections C.2.2
(Amending Agreement for
Minor Changes to the
Project Description, Budget
and Timelines) and D.7.2
(Amending Agreement for
Minor Changes to the
Reporting)
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Authorized Representative Position: [insert missing information]
designated by the Recipient
for the p'u'rpose of sections
C 2.2 ,(Amending
Agreement for Minor
Changes to the Project
11"Description, Budget and
Timelines) and D.7.2
(Amending Agreement for
Minor Changes to the
Reporting)
Contact Information for the Position: [insert missing information]
authorized representative of Address: [insert missing information]
the Recipient to respond to Phone: [insert missing information]
requests from the Province Fax: [insert missing information]
related to the Agreement Email: [insert missing information]
Niagara Falls and Ontario PTIF TPA
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SCHEDULE "C"
PROJECT DESCRIPTION, BUDGET AND TIMELINES
C.1.0 PROJECT DESCRIPTION, BUDGET AND TIMELINES
C.1.1 Project Description. The Recipient will carry out the Project described in Sub-
schedule "C.1" (Program Funding Request).
C.1.2 Budget and Timelines. The Recipient will carry out the Project within the Budget and
Timelines described in Sub-schedule "C.1" (Program Funding Request).
C.2.0 CHANGES TO THE PROJECT DESCRIPTION, BUDGET AND TIMELINES
C.2.1 Minor Changes to the Project Description, Budget and Timelines. Subject to
section C.2.2 (Amending Agreement for Minor Changes to the Project Description,
Budget and Timelines), the Parties agree that minor changes, as determined by the
Province at its sole discretion, may be made to the Project description, Budget and
Timelines.
C.2.2 Amending Agreement for Minor Changes to the Project Description, Budget and
Timelines. Any change made to the Project description, Budget and Timelines,
pursuant to section C.2.1 (Minor Changes to the Project Description, Budget and
Timelines), must be documented through a written agreement duly executed by the
respective representatives of the Parties listed in Schedule "B" (Project Specific
Information).
Niagara Falls and Ontario PTIF TPA
Page 32
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SCHEDULED"
REPORTING
D.1.0 DEFINITION
D.1.1 Definition. For the purposes of this Schedule "D" (Reporting):
"Reporting Guidelines" means the reporting provided by the Province that provides
direction to the Recipient on completing Reports.
D.2.0 REPORTING
D.2.1 Types of and Timelines for Reports. The Recipient will submit Progress Reports,
Outcomes Progress Reports and a Final Progress Report to the Province for each
Sub-project as required and within the timelines in Schedule "J" (Requests for
Payment and Payment Procedures),
D.2.2 Description of Reports. The Progress Reports and Final Progress Report are
described in Article D.3.0 (Progress Reports and Final Progress Report) and the
Outcomes Progress Reports are described in Article D.4.0 (Outcomes Progress
Reports).
D.3.0 PROGRESS REPORTS AND FINAL PROGRESS REPORT
D.3.1 Format and Information for Progress Reports and Final Progress Report. The
Recipient will submit to the Province each Progress Report and Final Progress Report
in a format acceptable to the Province. The Recipient will use the Reporting
Guidelines provided by the Province in submitting each Progress Report and Final
Progress Report. Also, each Progress Report and Final Progress Report will include
the information described in the template below. For greater clarity, references to
"Project" in the template refer to "Sub-project" as defined in the Agreement. The use of
the term "Project' is for consistency with templates the Province has received from
Canada pursuant to the Bilateral Agreement.
Niagara Falls and Ontario PTIF TPA
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Project Information
Unique Project Ultimate
ID Recipient Legal Project Title Project Description
Name
Financial Information
Total Total Program Other Federal Provincial Municipal Other
Project Eligible Contribution Contributions Contribution Contribution Contribution
Cost Cost (Eligible (Eligible (Eligible (Eligible (Eligible
Expenditures) Expenditures) Expenditures Expenditures Expenditures)
Claim Information
Total Incurred Eligible Cost Total Claimed To Date (including Amount Claimed
This claim
Progress Information
Forecasted Start Forecasted End Actual Start Date Actual End Date
Federal Signage Date (Updated Date (Updated
Installed (Y/N) from Project List) from Project List)
(YYYY/MM/DD) (YYYY/MM/DD) (YYYY/MM/DD YYYY/MM/DD
Progress Information Risk Assessment
Progress Towards Project Risk Factors
Completion (%) Complete? Progress Note (Updated from Mitigation Measures
Y/N Project List
Niagara Falls and Ontario PTIF TPA
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D.4.0 OUTCOMES PROGRESS REPORTS
D.4.1 Format and Information for Outcomes Progress Reports. The Recipient will submit
to the Province each Outcomes Progress Report in a format acceptable to the
Province. The Recipient will use the Reporting Guidelines'provided by the Province in
submitting each Outcomes Progress Report. Also, each Outcomes Progress Report
will include the information described in the template below in paragraph D.4.1 (a)
(Baseline Data and Results on Progress on Outcomes Template).
(a) Baseline Data and Results on Progress on Outcomes Template
The Recipient will provide the baseline data for the performance indicators identified
below to the Province for the first Outcomes Progress Report.
Except for the first Outcomes Progress Report, the Recipient will provide the results
on outcomes based on the performance indicators identified below for all Outcomes
Progress Reports.
For greater clarity and for consistency with tables Ontario has received from Canada
pursuant to the Bilateral Agreement, references to:
• "Project/project" in the table below refer to "Sub-project' as defined in the
Agreement;
• "funded investments", "funded" and "funding" in the table below refer to "Funds" as
defined in the Agreement; and
• "PTIF recipient' in the table below refer to 'Recipient" as defined in the Agreement.
This section to be updated
at each rep rting cycle
Baseline Result # of Projects
PTIF Outcome PTIF Indicator data Affected
Provide cumulative results
on completed projects from
start of Pro ram
Number of funded transit Not
Projects that applicable,
1 support system projects that have baseline is
modernization incorporated modern, zero
innovative technology
Funded plans Number of funded plans or Not
2 are being studies that led to informed applicable,
implemented decisions on investments baseline is
zero
Niagara Falls and Ontario PTIF TPA
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Average number of years of
useful life remaining on
3 applicable transit assets,
extended as a result of funded
investments
Percentage of assets that have
improved their physical
4 Improved condition rating as a result of
rehabilitation funding
Average percentage decrease
in unplanned service
interruptions per month (not
5 related to weather) that can be
attributed to funded
investments
Number of funded transit Not
system projects that have applicable,
6 added safety features or baseline is
equipment zero
Increased Estimated percentage
safety decrease in incidents (collision
and non-collision) that can be
attributed to funded
investments
Average increase in the
Increased percentage of transit system
8 accessibility fleets that are low-floor
accessible, as a result of
funding
Average life cycle cost of
applicable transit system
9 assets after completion of
funded investments
Improved
efficiency Average litres of fuel per
passenger-kilometre after
10 completion of funded
investments
Niagara Falls and Ontario PTIF TPA
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Total estimated cubic-meters of
11 natural gas saved as a result of
funded investments
Total estimated kilowatt-hours
12 saved as a result of funded
investments
Total of new passenger-
kilometres travelled as a result
13 of funded system expansion
projects
Transit Number of early works projects Not
systems are that lay the foundation for applicable,
14 expanding future transit system expansion baseline is
(additional indicator) zero
Number of funded projects that Not
15 support active transportation applicable,
(additional indicator) baseline is
zero
Total value of capital
16 Projects are expenditures for transit projects
Incremental by PTIF recipient
D.5.0 ABORIGINAL CONSULTATION RECORD
D.5.1 Inclusion of Aboriginal Consultation Record. The Recipient agrees to include, if
consultation with Aboriginal Communities is required, in its Progress Reports any
Aboriginal Consultation Record.
D.6.0 RISK ASSESSMENT
D.6.1 Further Details on Risk Assessment. Upon the Province's written request and at
the sole discretion of the Province, the Recipient will provide further details on the risk
assessment it provides in any of its Sub-project Progress Reports.
Niagara Falls and Ontario PTIF TPA
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D.7.0 CHANGES TO SCHEDULE "D" (REPORTING)
D.7.1 Minor changes to the Reporting. Subject to section D.7.2 (Amending Agreement for
Minor Changes to the Reporting), the Parties agree that minor changes to this
Schedule "D" (Reporting), as determined by the Province at its sole discretion, may be
made.
D.7.2 Amending Agreement for Minor Changes to the Reporting. Any change made to
this Schedule "D" (Reporting), pursuant to section D.7.1 (Minor Changes to the
Reporting), must be documented through a written agreement duly executed by the
respective representatives of the Parties listed in Schedule "B" (Project Specific
Information).
Niagara Falls and Ontario PTIF TPA
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SCHEDULE "E"
ELIGIBLE EXPENDITURES AND INELIGIBLE EXPENDITURES
E.1.0 DEFINITIONS
E.1.1 Definitions. For the purposes of this Schedule "E" (Eligible Expenditures and
Ineligible Expenditures):
"Eligible Investments" means the Eligible Investments described in section E.2.2
(Eligible Investments).
"Ineligible Expenditures" means the costs of the Project that are ineligible for
contribution by the Province under the terms and conditions of the Agreement, and
that are described in this Schedule "E" (Eligible Expenditures and Ineligible
Expenditures).
E.2.0 ELIGIBLE EXPENDITURES AND ELIGIBLE INVESTMENTS
E.2.1 Eligible Expenditures Date of Effect. Eligible Expenditures can begin to accrue as
of April 1, 2016.
E.2.2 Eligible Investments. The following are Eligible Investments:
(a) capital projects for the rehabilitation, optimization and modernization of public
transit infrastructure, or that improve the efficiency, accessibility or safety, or
both, of public transit infrastructure (including rehabilitation or enhancement of
existing guide ways, maintenance and storage facilities, transit stations or
other public transit capital assets, refurbishment or replacement of existing
rolling stock, intelligent transportation systems and replacement or
enhancement of transit stations);
(b) expenditures to support the asset management capacity of a public transit
system;
(c) expenditures to support the design and planning for the expansion and
improvements to public transit systems, including transportation demand
management measures and studies and pilot projects related to innovative and
transformative technologies; and
(d) projects for system expansion, which may include active transportation, if they
can be completed within the PTIF timeframe.
E.2.3 Scope of Eligible Expenditures. Eligible Expenditures are the direct costs which
are, in the Province's opinion, properly and reasonably incurred by the Recipient for
the Project between April 1, 2016 and March 31, 2019 and Eligible Investments.
Eligible Expenditures incurred between the period of April 1, 2018 and March 31,
2019 will be subject to the prior written approval of Canada and the Province and
limited to a maximum of 25% of the Maximum Funds. Eligible Expenditures include
only the following:
Niagara Falls and Ontario PTIF TPA
Page 139
(a) all costs considered by the Parties to be direct and necessary for the
successful implementation of the Project, excluding the costs identified under
Article E.3.0 (Ineligible Expenditures);
(b) costs of Aboriginal consultation and, where appropriate, accommodation;
(c) costs of construction carried out in-house by the Recipient; and
(d) other costs that, in the opinion of the Province, are considered to be necessary
for the successful implementation of the Project and have been approved in
writing prior to being incurred.
E.3.0 INELIGIBLE EXPENDITURES
E.3.1 Scope of Ineligible Expenditures. Unless a cost is considered an Eligible
Expenditure pursuant to section E.2.3 (Scope of Eligible Expenditures), such cost
will be considered an Ineligible Expenditure. Without limitation, the indirect costs
listed in section E.3.2 (Indirect Costs), the costs that are over and above the Project
scope listed in section E.3.3 (Costs Over and Above Project Scope), and the
following costs will be considered Ineligible Expenditures:
(a) costs incurred prior to April 1, 2016 and costs incurred after March 31, 2019,
unless otherwise approved pursuant to paragraph E.2.3(d);
(b) except as otherwise specified in the Agreement and at the Province's sole
discretion, costs incurred for cancelled Projects;
(c) land acquisition;
(d) leasing land, buildings and other facilities;
(e) leasing equipment other than equipment directly related to the construction of
the Project;
(f) real estate fees and related costs;
(g) financing charges;
(h) legal fees and loan interest payments, including those related to easements
(e.g., surveys);
(i) any goods and services costs which are received through donations or in kind;
(j) taxes for which the Recipient is eligible for a rebate, and any other costs
eligible for rebates;
(k) costs associated with operating expenses and regularly scheduled
maintenance work;
(1) costs incurred by the Recipient for the purpose of the Project Evaluation; and
(m) other costs which are not specifically listed as Eligible Expenditures under
Article E.2.0 (Eligible Expenditures and Eligible Investments) and which, in the
opinion of the Province, are considered to be ineligible.
E.3.2 Indirect Costs. Without limitation, the following indirect costs are Ineligible
Expenditures:
(a) costs of developing the business case for the purposes of applying for
provincial funding for the Project;
Niagara Falls and Ontario PTIF TPA
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(b) costs related to Project evaluation, including the Project Evaluation, and audit,
unless otherwise approved by the Province in writing;
(c) costs associated with obtaining necessary approvals, licenses or permits
where the Recipient is the entity providing the approval, license or permit;
(d) costs associated with general planning studies, including the Recipient's
Official Plan and Transportation Master Plan;
(e) salaries and other employment benefits of any employees, overhead costs as
well as other direct or indirect operating or administrative costs of the
Recipient, and more specifically these costs as related to planning,
engineering, architecture, supervision, management and other services
provided by the Recipient's permanent staff and funded under the Recipient's
operating budget;
(f) costs of any activities that are part of the regular operation and maintenance
of municipal assets, including operation and maintenance costs related to the
Project;
(g) carrying costs incurred on the funding share of any funding partner other than
the Province;
(h) costs associated with municipal staff travel and any Third Party;
(i) litigation costs incurred by the Recipient in proceedings against the Province
or the Recipient;
Q) legal costs incurred by the Recipient; and
(k) Recipient's upgrades not expressly approved by the Province;
E.3.3 Costs Over and Above Project Scope. Activities undertaken as part of the
Project that are over and above the scope of the Project will not be funded under
the Agreement. These costs include, but are not limited to:
(a) upgrading of municipal services and utilities that is over and above relocation
or replacement that is necessitated for the Project;
(b) upgrades to materials and design beyond existing municipal standards; and
(c) corridor and urban design enhancements over and above those that are
described for the Project.
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SCHEDULE "F"
EVALUATION
F.1.0 PROJECT EVALUATION
F.1.1 Recipient's Participation in Project Evaluation, The Recipient understands that
the Province or Canada, or both, may ask the Recipient to participate in an
evaluation of the Program or PTIF, or both, during and after the Term. The
Recipient agrees, if asked and at its own expense, to provide Project-related
information to the Province or Canada, or both, for the purpose of the evaluation.
F.1.2 Results of Project Evaluation(s). The result of the Project evaluation(s) carried
under section F.1.1 (Recipient's Participation in Project Evaluation) will be made
available to the public.
Niagara Fails and Ontario PTIF TPA
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SCHEDULE "G"
COMMUNICATIONS PROTOCOL
G.1.0 . DEFINITIONS
GAA Definitions. For the purposes of this Schedule "G" (Communications Protocol):
"Communications Activities" include, but are not limited to, public or media
events or ceremonies including key milestone events, news releases, reports, web
and social media products or postings, blogs, news conferences, public notices,
physical and digital signs, publications, success stories and vignettes, photos,
videos, multi-media content, advertising campaigns, awareness campaigns,
editorials, multi-media products and all related communication materials.
"Joint Communications" are events, news releases, and signage that relate to
the promotion of the Program, PTIF or Project and are collaboratively developed
and approved by Canada, Ontario and the Recipient, and are not operational in
nature.
G.2.0 PURPOSE
G.2.1 Purpose. This communications protocol outlines the roles and responsibilities of
each of the Parties to the Agreement with respect to Communications Activities
related to the Project.
G.2.2 Guidance. This communications protocol will guide all Communications Activity
planning, development and implementation with a view to ensuring efficient,
structured, continuous, consistent and coordinated communications to the
Canadian public.
G.2.3 Application to Communications Activities. The provisions of this
communications protocol apply to all Communications Activities related to the
Agreement and the Project.
G.3.0 GUIDING PRINCIPLES
G.3.1 Information to Canadians. Communications Activities undertaken through this
communications protocol should ensure that Canadians are informed that the
Project helps improve their quality of life and about its benefits.
G.3.2 Factors to Consider. The Communications Activities undertaken to recognize
funding under the Agreement will take into account the financial value and
duration of the Project and the feasibility of Joint Communications for
Communications Activities.
Niagara Falls and Ontario PTIF TPA
Page 143
G.3.3 Deficiencies and Corrective Actions. The Province will communicate to the
Recipient any deficiencies or corrective actions, or both, identified by the
Province, Canada or, as applicable, the Committee.
G.3.4 Approval of Communications Material. The announcement or publication of
the Project must be approved by the Parties and Canada prior to being carried
out.
G.4.0 JOINT COMMUNICATIONS
G.4.1 Subject Matter. The Parties and Canada will have Joint Communications about
the funding and status of the Project.
G.4.2 Prior Knowledge and Agreement. Joint Communications related to the Project
should not occur without the prior knowledge and agreement of the Parties and
Canada.
G.4.3 Recognition of Canada's Contribution. All Joint Communications material will
be approved by the Province and Canada, and will recognize Canada's
contribution under Schedule "A" (General Terms and Conditions) or the Total
Financial Assistance, or both, received for the Project.
GAA Notice and Timing. The Recipient and the Province, on its own behalf or that of
Canada, may request Joint Communications. The Party requesting the Joint
Communications will provide at least 20 Business Days' notice to the other Party.
If the Communications Activity is an event, it will take place at a date and location
mutually agreed to by the Parties and, if applicable, Canada.
G.4.5 Participation and Representatives. The Party requesting a Joint
Communications will provide the opportunity for the other Party and Canada to
choose to participate and, if they do so choose, their own designated
representative (in the case of an event).
G.4.6 English and French. Canada has an obligation to communicate in English and
French. Communications products related to events must be bilingual and include
the Canada word mark and the logos of the Parties. In such cases, Canada will
provide the translation services and final approval on products.
Niagara Falls and Ontario PTIF TPA
Page (44
G.4.7 Table of Precedence for Canada. The conduct of all Joint Communications will
follow the Table of Precedence for Canada as applicable.
G.5.0 INDIVIDUAL COMMUNICATIONS
G.5.1 Canada's Obligations. Notwithstanding Article G.4.0 (Joint Communications), the
Parties agree that Canada has the right to communicate information to Canadians
about the Agreement and the use of Funds to meet its legislated and regulatory
obligations through its own Communications Activities.
G.5.2 Restrictions. Each Party may include general PTIF messaging and an overview
of the Project in their own Communications Activities. The Province and the
Recipient will not unreasonably restrict the use of, for their own purposes,
Communications Activities related to the Project and if web- or social-media
based, from linking to it. Canada has also agreed, in the Bilateral Agreement, to
the above.
G.5.3 Publication. The Recipient will indicate, in any of its Project-related publications,
whether written, oral, or visual, that the views expressed in the publication are the
views of the Recipient and do not necessarily reflect those of the Province.
G.6.0 OPERATIONAL COMMUNICATIONS
G.6.1 Responsibility of Recipient. The Province and the Recipient are solely
responsible for operational communications with respect to the Project, including
but not limited to: calls for tender, contract awards, and construction and public
safety notices. Operational communications as described above are not subject to
the Official Languages Act of Canada.
G.7.0 MEDIA RELATIONS
G.7.1 Significant Media Inquiry. The Province and the Recipient will share information
promptly with the other Party and Canada should significant media inquiries be
received or emerging media or stakeholder issues arise in respect of a Project or
the PTIF.
G.8.0 SIGNAGE
G.8.1 Recognition of Funding Contribution. The Parties agree that Canada, the
Province and the Recipient may each have signage recognizing their funding
contribution to the Project.
Niagara Fails and Ontario PTIF TPA
Page 45
t
G.8.2 Federal Funding Recognition. Unless otherwise agreed by Canada, the
Province or the Recipient will produce and install a sign to recognize Canada's
funding at the Project site in accordance with current federal signage guidelines.
Federal sign design, content, and installation guidelines will be provided by
Canada.
G.8.3 Permanent Plaque. Where the Recipient decides to install a permanent plaque or
other suitable marker with respect to the Project, it will recognize Canada's
contribution and will be approved by Canada.
G.8.4 Notice of Sign Installation. The Recipient will inform the Province of sign
installations.
G.8.5 Timing for Erection of Sign. If erected, signage recognizing Canada's
contribution will be installed at the Project site(s) 30 days prior to the start of
construction, be visible for the duration of the Project, and remain in place until 30
days after construction is completed and the infrastructure is fully operational or
opened for public use.
G.8.6 Size of Sign. If erected, signage recognizing Canada's contribution will be at least
equivalent in size and prominence to Project signage for contributions by other
orders of government and be installed in a prominent and visible location that
takes into consideration pedestrian and traffic safety and visibility.
G.8.7 Responsibility of Recipient. The Recipient is responsible for the production and
installation of Project signage, or as otherwise agreed upon.
G.8.8 Canada's Recognition in Documents. In the case of Projects where the
deliverable is a document, such as but not limited to plans, reports, studies,
strategies, training material, webinars, and workshops, the Recipient will clearly
recognize Canada's financial contribution received for the Project.
G.9.0 COMMUNICATING WITH RECIPIENT
G.9.1 Facilitation of Communications. The Province agrees to facilitate, as required,
communications between Canada and the Recipient for Communications
Activities.
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G.10.0 ADVERTISING CAMPAIGNS
G.10.1 Notice of Advertising Campaigns. Recognizing that advertising can.be an
effective means of communicating with the public, the Recipient agrees that
Canada or the Province, or both, may, at their own cost, organize an advertising
or public information campaign related to the Agreement or the Project. However,
such a campaign will respect the provisions of the Agreement. In the event of
such a campaign, the sponsoring Party or Canada will inform the other Party or
Canada of its intention no less than 21 Business Days prior to the campaign
launch.
Niagara Falls and Ontario PTIF TPA
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SCHEDULE "H"
DISPOSAL OF AND REVENUES FROM ASSETS
H.1.0 DEFINITIONS
H.1.1 Definitions. For the purposes of this Schedule"H" (Disposal of and Revenues from
Assets):
"Fiscal Year" means the period beginning April 1 of a year and ending March 31 of
the following year.
"Local Government" means a single-tier, lower-tier or upper-tier municipality
established by or under an Ontario provincial statute, and also includes a municipal
service corporation established by such a single-tier, lower-tier or upper-tier
municipality.
H.2.0 DISPOSAL OF ASSETS
H.2.1 Gas Tax Funds Implications. Despite section H.2.2 (Repayment) and unless the
Province otherwise requires in writing, the Recipient agrees that the terms and
conditions under the Ministry of Transportation Dedicated Gas Tax Funds for Public
Transportation Program (the "Dedicated Gas Tax Program") will apply to any Asset
purchased, acquired, constructed, repaired, rehabilitated, renovated or improved, in
whole or in part, with funds from the Dedicated Gas Tax Program, in addition to the
Funds, if the Recipient proposes to sell, lease, encumber or use in a manner other
than described in the Agreement, or otherwise dispose of, directly or indirectly, any
such Asset.
H.2.2 Repayment. Subject to sections H.2.1 (Gas Tax Funds Implications) and H.2.3
(Reinvestment), the Recipient undertakes to notify the Province in writing, 180 days
in advance if, at any time during a period of five years from the Expiry Date, the
Recipient proposes to sell, lease, encumber or use any Asset in a manner other
than described in the Agreement, or otherwise dispose of, directly or indirectly, any
Asset purchased, acquired, constructed, repaired, rehabilitated, renovated or
improved, in whole or in part, with Funds, other than to Canada, the Province, a
Crown agent of the Province or Canada, or a Local Government or, with the
Province's written consent, any other entity. Upon disposition, unless the Province
otherwise consents in writing, the Recipient hereby undertakes to reimburse the
Province, forthwith on demand, a proportionate amount of the Province's
contribution, in the proportion set out below:
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Where Asset sold, leased, encumbered, Return of Funds
used in a manner other than described in (in current dollars)
the Agreement, or otherwise disposed of
within:
Up to five years after the Expiry Date 100%
More than five years after the Expiry Date 0%
H.2.3 Reinvestment. Notwithstanding the foregoing, if the Recipient disposes of any
Asset, directly or indirectly, during the five year period noted in section H.2.2
(Repayment) and replaces it with an asset of equal or greater value, the Recipient
may, in lieu of the repayment provided for in section H.2.2 (Repayment) and with
the Province's prior written consent, reinvest the proceeds from the disposal into the
replacement asset.
H.3.0 REVENUES FROM ASSETS
H.3.1 Revenues. The Parties acknowledge that their contributions to the Project are
meant to accrue to the public benefit. The Recipient will notify the Province in
writing, within 90 days of the end of a Fiscal Year, if any Asset is used in a way that,
in the Fiscal Year, revenues generated from the Asset exceeded the Recipient's
operating expenses. In such instance, the Province may require the Recipient to
pay to the Province immediately a portion of the excess, in the same proportion as
the Province's contribution is to the total cost of the Asset. This obligation will apply
only to the first five complete Fiscal Years following the Expiry Date.
H.4.0 DEDUCTION FROM FINANCIAL ASSISTANCE
HAA Deduction by Province. The Province may deduct any amount of funds to be
repaid by the Recipient under this Schedule "H" (Disposal of and Revenues from
Assets) from the financial assistance payable on any other current or future
project(s) of the Recipient under any other provincial program(s).
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SCHEDULE "I"
ABORIGINAL CONSULTATION PROTOCOL
L1.0 DEFINITIONS
1.1.1 Definitions. For the purposes of this Schedule 'T' (Aboriginal Consultation
Protocol):
"Aboriginal Community" includes First Nation, Metis and Inuit communities or
peoples of Canada.
"Aboriginal Consultation Plan" means the Aboriginal Consultation Plan described
in section 1.2.1 (Development of Plan).
"Aboriginal Consultation Record" means a document that records and describes,
as the Province may require, the consultation activities carried out during the
Project and the results of that consultation.
L2.0 ABORIGINAL CONSULTATION PLAN
1.2.1 Development of Plan. The Province, based on the scope and nature of the Project
or at the request of Canada, may require the Recipient to, in consultation with the
Province or Canada, or both, develop and comply with an Aboriginal consultation
plan ("Aboriginal Consultation Plan").
1.2.2 Procedural Aspects of Consultation. If consultation with an Aboriginal
Community is required, the Recipient agrees that:
(a) the Province or Canada, or both, may delegate certain procedural aspects of
the consultation to the Recipient; and
(b) the Province or Canada, or both, provide the Recipient with an initial list of the
communities the Recipient may consult.
1.2.3 Provision of Plan to Province. If, pursuant to section 1.2.1 (Development of Plan),
the Province provides Notice to the Recipient that an Aboriginal Consultation Plan is
required, the Recipient will, within the timelines provided in the Notice, provide the
Province with a copy of the Aboriginal Consultation Plan.
1.2A Changes to Plan. The Recipient agrees that the Province or Canada, in the
Province's or Canada's sole discretion and from time to time, may require the
Recipient to make changes to the Aboriginal Consultation Plan.
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1.3.0 ABORIGINAL CONSULTATION RECORD
1.3.1 Requirements for Aboriginal Consultation Record. If consultation with Aboriginal
Communities is required, the Recipient will maintain an Aboriginal Consultation
Record and provide such record to the Province, and any update to it, as part of its
reporting to the Province pursuant to section D.4.1 (Inclusion of Aboriginal
Consultation Record).
1.4.0 RESPONSIBILITIES OF THE RECIPIENT
1.4.1 Notification to and Direction from the Province. The Recipient will immediately
notify the Province:
(a) of contact by any Aboriginal Communities regarding the Project; or
(b) if any Aboriginal archaeological resources are discovered in the course of the
Project,
and, in either case, the Recipient agrees that the Province or Canada, or both, may
direct the Recipient to take such actions as the Province or Canada, or both, may
require. The Recipient will comply with the Province's or Canada's direction.
1.4.2 Direction from the Province and Contracts. The Recipient will provide in any
Contract for the Recipient's right and ability to respond to direction from the
Province or Canada, or both, as the Province or Canada may provide in accordance
with section 1.4.1 (Notification to and Direction from the Province).
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SCHEDULE "J"
REQUESTS FOR PAYMENT AND PAYMENT PROCEDURES
J.1.0 DEFINITION
J.1.1 Definition. For the purposes of this Schedule "J" (Requests for Payment and
Payment Procedures):
"Final Payment" means the final payment by the Province to the Recipient for
each Sub-project as described in and to be paid in accordance with Article J.8.0
(Final Payment).
J.2.0 PROCEDURES AND TIMING FOR REQUESTS FOR PAYMENT
J.2.1 Procedures. The Recipient agrees that the procedures provided for in Article J.3.0
(Procedures for Requests for Payment for Eligible Expenditures) will apply to
requests for payment the Recipient submits to the Province under the Agreement.
J.2.2 Diligent and Timely Manner. The Recipient agrees to submit its requests for
payment to the Province in a diligent and timely,manner.
J.3.0 PROCEDURES FOR REQUESTS FOR PAYMENT FOR ELIGIBLE
EXPENDITURES
J.3.1 Timing, Reports and Documents. The Recipient agrees to submit each Sub-
project request for payment for Eligible Expenditures to the Province semi-annually
and on a date to be specified by the Province at its sole discretion, and, subject to
paragraph KA.1 (f), after review by the Committee. The Recipient agrees to submit,
for each of the circumstances listed below, the following reports and documents:
(a) for each request for payment, including the Final Payment, a Request for
Payment Form, using the form provided in Sub-schedule "J.1" (Form of
Request for Payment Form), fully and accurately completed by an authorized
representative of the Recipient;
(b) for each request for payment, except for the Final Payment, a Progress
Report and an Outcomes Progress Report, acceptable to the Province, for the
period to which the request for payment relates;
(c) for each request for payment, except for the Final Payment, a certification,
using the form of certificate provided in Sub-schedule "J.2" (Form of
Certificate from Recipient), by an authorized representative of the Recipient;
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(d) for each request for Final Payment, a Declaration of Sub-project Completion,
using the form provided in Sub-schedule "J.3" (Form of Declaration of Sub-
project Completion), by an authorized representative of the Recipient;
(e) for each request for Final Payment, the Final Progress Report and last
Outcomes Report, acceptable to the Province, for the period to which the
request for payment relates; .
(f) for each request for Final Payment for new and expansion Sub-projects, if
applicable in the opinion of the Province and in addition to the Declaration of
Sub-project Completion, a certification, using the form of certificate provided
in Sub-schedule "J.4" (Form of Certificate from Professional Engineer), by a
professional engineer;
(g) if the Province so requests, a copy of all documentation provided to the
Recipient by the authorized representative of the Recipient or professional
engineer, or both, for the certification or declaration, as applicable, in
paragraphs J.3.1 (c), (d) and (f); and
(h) such other information as the Province may request.
J.4.0 PAYMENTS
J.4.1 Payment by the Province. Subject to the terms and conditions of the Agreement,
including the Province receiving the necessary annual appropriation from the
Ontario Legislature or funds from Canada, or both, upon receipt of a request for
payment fully completed in accordance with this Schedule "J" (Requests for
Payment and Payment Procedures), the Province will use its reasonable efforts to
make a payment to the Recipient, if due and owing under the terms of the
Agreement, in a timely manner. The Province will under no circumstances be liable
for interest for failure to make a payment within the time limit provided for in this
Article J.4.0 (Payments).
J.5.0 TIME LIMITS FOR REQUESTS FOR PAYMENTS
J.5.1 Timing. The Recipient will submit all requests for payment prior to September 1,
2019.
J.5.2 No Obligation for Payment. The Province will have no obligation to make any
payment for a request for payment submitted after September 1, 2019.
J.6.0 FINAL RECONCILIATION AND ADJUSTMENTS
J.6.1 Final Reconciliation and Adjustments. For each Sub-project, following delivery
of the completed Declaration of Sub-project Completion, confirming achievement of
Sub-project Completion, the Final Progress Report and last Outcomes Progress
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Report, the Parties will jointly carry out a final reconciliation of all requests for
payments and payments in respect of the Sub-project and make any adjustments
required in the circumstances.
J.7.0 HOLDBACK
J.7.1 Holdback. For each Sub-project, the Province may pay to the Recipient up to 90%
of its contribution under the Agreement prior to final adjustments in accordance with
Article J.6.0 (Final Reconciliation and Adjustments). Subject to Paragraph AAA (a),
the Province will pay the Holdback when the final reconciliation and all adjustments
are made in accordance with Article J.6.0 (Final Reconciliation and Adjustments),
and in accordance with Article J.8.0 (Final Payment).
J.8.0 FINAL PAYMENT
J.8.1 Final Payment. Upon completion of the final reconciliation and all adjustments in
accordance with Article J.6.0 (Final Reconciliation and Adjustments), the Province
agrees, subject to the Recipient having met all other terms and conditions of the
Agreement and paragraph A.4.2(c), to pay the Recipient the remainder of its
contribution for the Sub-project together with the Holdback contemplated pursuant
to Article J.7.0 (Holdback).
Niagara Falls and Ontario PTIF TPA
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SUB-SCHEDULE "J.2"
FORM OF CERTIFICATE FROM RECIPIENT
PUBLIC TRANSIT INFRASTRUCTURE FUND (PTIF) PHASE ONE (ONTARIO) .
TRANSFER PAYMENT AGREEMENT
CERTIFICATE FROM RECIPIENT
TO: Public Transit Infrastructure Fund Program
Municipal Transit Policy Office
Ontario Ministry of Transportation
777 Bay St., 30th Floor
Toronto, ON M7A 2J8
Attention: Manager, Municipal Transit Policy Office
Email: PTIF@ontario.ca
Telephone No.: 416-585-6312
Facsimile No.: 416-585-7343
FROM: [insert address of the Recipient's authorized representative;]
Attention: [insert the name,.and title,of the Recipient's
authorized representative]
Email: [nsert ematl address of the Recipient-'s
authortzei representative]
Telephone No.: [insert telephone number"of the Recipients
authorized representatwe]
Facsimile No.: [nsert facstmtle number of the Recipient's
authorizetl representative]
RE: Public Transit Infrastructure Fund (PTIF) Phase One (Ontario)
Transfer Payment Agreement - Sub-project[insert the-Sub'-
project unique ID and title]
In the matter of the Public Transit Infrastructure Fund (PTIF) Phase One (Ontario) Transfer
Payment Agreement entered into between Her Majesty the Queen in right of Ontario,
represented by the Minister of Transportation for the Province of Ontario, and the [insert
tie legal name of the Recipient] (the "Recipient'), on (the
"Agreement').
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I, [insertname and title iof the Recipient's authorized
representative], having made such inquiries as I have deemed necessary for this
certificate, hereby certify that to the best of my knowledge, information and belief:
1. On and as of the date set out below:
a, all representations and warranties contained in Article A.2.0 (Representations,
Warranties and Covenants) of Schedule "A" (General Terms and Conditions) to
the Agreement are true and correct;
b. the Recipient is in compliance with all the terms and conditions of the
Agreement, including, without limitations, its obligations under section A.34.1
(Special Conditions) of Schedule "A" (General Terms and Conditions) to the
Agreement, and no Event of Default, as described in the Agreement, has
occurred and is continuing;
c. if the Recipient has incurred a cost overrun for the Sub-project, it has funded the
cost and is not asking for funds from the Province and has sufficient funds to
complete the Sub-project in compliance with the Agreement; and
d. the Recipient has complied with all applicable provision of the Construction Lien
Act (Ontario) and is not aware of any claims for lien under that Act.
2. The information in respect of the Sub-project [insert the Sub-project unique ID
and title] that is contained in the attached Request for Payment Form, Progress
Report and Outcomes Progress Report is true and accurate.
3. The Funds will only and entirely be used for Eligible Expenditures that have been
incurred by the Recipient in accordance with the Agreement.
Niagara Falls and Ontario PTIF TPA
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,
The Recipient hereby requests a payment in the amount of$ on account of
the Province's contribution towards the Eligible Expenditures of the Sub-project [mS. e&tf 6
Sub=project;unique ID and title].
Declared at (municipality), in the Province of Ontario, this
day of 20
(Signatures)
Name: Witness Name:
Title: Title:
rmsgrt name.and title:of;the Recipient's
authorized representative]
I have authority to bind the Recipient.
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SUB-SCHEDULE "J.3"
FORM OF DECLARATION OF SUB-PROJECT COMPLETION
PUBLIC TRANSIT INFRASTRUCTURE FUND (PTIF) PHASE ONE (ONTARIO)
TRANSFER PAYMENT AGREEMENT
DECLARATION OF SUB-PROJECT COMPLETION
TO: Public Transit Infrastructure Fund Program
Municipal Transit Policy Office
Ontario Ministry of Transportation
777 Bay St., 30" Floor
Toronto, ON M7A 2J8
Attention: Manager, Municipal Transit Policy Office
Email: PTIF@ontario.ca
Telephone No.: 416-585-6312
Facsimile No.: 416-585-7343
FROM: [insert address of the Recipient's authorized;representative]
Attention: [insert the name and title of the Recipient's
authorized representative]
Email: [insert email address of the Recipient's
authorized representative]
Telephone No.: [insert telephone_numtier of the Recipient's
authorized representative
Facsimile No.: [insert facsimile number.of the Recipient's
authorized representative]
RE: Public Transit Infrastructure Fund (PTIF) Phase One (Ontario)
Transfer Payment Agreement - Sub-project [insert the Sub-
project unique ID and title]
In the matter of the Public Transit Infrastructure Fund (PTIF) Phase One (Ontario) Transfer
Payment Agreement entered into between Her Majesty the Queen in right of Ontario, as
represented by the Minister of Transportation for the Province of Ontario, and the [insert
the,legal name of the Recipient] (the "Recipient"), on (the
"Agreement").
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I, [insert namerand.title;of<the„Recipient's author ze
rep esenta'tiv4 having made such inquiries as 1 have deemed necessary for this
certificate, hereby certify that to the best of my knowledge, information and belief:
1. On and as of the date set out below:
a. all representations and warranties contained in Article A.2.0 (Representations,
Warranties and Covenants) of Schedule "A” (General Terms and Conditions) to
the Agreement are true and correct;
b. the Recipient is in compliance with all the terms and conditions of the
Agreement, including, without limitations, its obligations under section A.34.1
(Special Conditions) of Schedule "A" (General Terms and Conditions) to the
Agreement, and no Event of Default, as described in the Agreement, has
occurred and is continuing;
c. if the Recipient has incurred a cost overrun for the Sub-project, it has funded the
cost and is not asking for funds from the Province and has sufficient funds to
complete the Sub-project in compliance with the Agreement;
d. the Recipient has complied with all applicable provision of the Construction Lien
Act(Ontario) and is not aware of any claims for lien under that Act;
e. the work for the Sub-project[insert the Sub-project unique ID andtitle]:
i. has reached Sub-project Completion, as defined in the Agreement, on the
day of 20_ (the "Sub-project Completion Date");
ii. was carried out by If the name of the prime
contractor'], between [insert tFe start date] and
[insert the Sub=project CompletionDate];
iii. was supervised and inspected by qualified staff;
iv. conforms with the plans, specifications and other documentation for the work;
V. conforms with applicable Environmental Laws, as defined in the Agreement,
and appropriate mitigation measures have been implemented;
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vi. conforms with Schedule "C" (Project Description, Budget and Timelines) to
the Agreement, except as the Province has otherwise approved in advance
and in writing; and
vii. conforms with the requirements provided for in paragraph AA.I0(d) of
Schedule "A" (General Terms and Conditions) to the Agreement to comply
with industry standards.
2. The information in respect of the Sub-project [inserLthe Sub-project unique ID
and title] that is contained in the attached Request for Payment Form, Final
Progress Report and last Outcomes Progress Report is true and accurate.
3. The Funds will only and entirely be used for Eligible Expenditures that have been
incurred by the Recipient in accordance with the Agreement.
4. The value of completed work on the Sub-project is $ tinsert the
amount in Canadian dollars].
The Recipient hereby requests a payment in the amount of$ on account of
the Province's contribution towards the Eligible Expenditures of the Sub-project[insert the
Sub-project unique lb and titie].
Declared at (municipality), in the Province of Ontario, this
day of _, 20
(Signatures)
Name: Witness Name:
Title: Title:
[insert name and title of the Recipient's
authorized representative]
I have authority to bind the Recipient.
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SUB-SCHEDULE "J.4"
FORM OF CERTIFICATE FROM PROFESSIONAL ENGINEER
PUBLIC TRANSIT INFRASTRUCTURE FUND (PTIF) PHASE ONE (ONTARIO)
TRANSFER PAYMENT AGREEMENT
CERTIFICATE FROM PROFESSIONAL ENGINEER
TO: Public Transit Infrastructure Fund Program
Municipal Transit Policy Office
Ontario Ministry of Transportation
777 Bay St., 30" Floor
Toronto, ON M7A 2J8
Attention: Manager, Municipal Transit Policy Office
Email: PTIF@ontario.ca
Telephone No.: 416-585-6312
Facsimile No.: 416-585-7343
FROM: [insert the address of the professional engineer]
Attention: j nsert the name and:btle of the professional
engineer
Email [insert the email address,of theprofessional
engineer]
Telephone No ((r ert tFie,telepfi, he number of fhe professional
engineer]
Facsimile: jmsort the facsimile number o_f professional
engineer]
RE: Public Transit Infrastructure Fund (PTIF) Phase One (Ontario)
Transfer Payment Agreement - Sub-project nserf tlie'Su6
project unique IDiard title]
In the matter of the Public Transit Infrastructure Fund (PTIF) Phase One (Ontario) Transfer
Payment Agreement entered into between Her Majesty the Queen in right of Ontario, as
represented by the Minister of Transportation for the Province of Ontario, and the [msert
tfie name of_ q Recipient] (the "Recipient"), on (the
„Agreement').
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I, [insert the name and title ofahe professional"engineer], a
professional engineer duly licensed in the Province of Ontario, having made such inquiries
as I have deemed necessary for this certificate, hereby certify that to the best of my
knowledge, information and belief:
On and as of the date set out below:
1. the work for the new or expansion Sub-project [insert the Sub-project unique ID
and title]:
a. has reached Sub-project Completion, as defined in the Agreement, on the
day of 20 (the "Sub-project Completion Date");
b. was carried out by[insert the name of the prime contractorl, between [insert
the start date] and [insert the Sub-project Completion
Date];
c was supervised and inspected by qualified staff;
d. conforms with the plans, specifications and other documentation for the work;
e. conforms with applicable Environmental Laws, as defined in the Agreement, and
appropriate mitigation measures have been implemented;
f. conforms with Schedule "C" (Project Description, Budget and Timelines) to the
Agreement, except as the Province has otherwise approved in advance and in
writing;
g, conforms with the requirements provided for in paragraph A.4(1 0(d) of Schedule
"A" (General Terms and Conditions) to the Agreement to comply with industry
standards; and
Niagara Falls and Ontario PTIF TPA
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h. can be completed by[insert`ether March 31,'2018 or,ifuGanatla and,ffie
Provincehave provided their'priorwrtten approval; the,approued,date].
Declared at (municipality), in the Province of Ontario, this day
of 20
(Signatures)
Name: Witness Name:
Title: Title:
jinsert nameanii title°of
the°professional engineer']
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SCHEDULE "K"
COMMITTEE
K.1.0 ESTABLISHMENT OF COMMITTEE
K.1.1 Establishment and Term of Committee. If the Province establishes a Committee,
pursuant to section A.32.1 (Establishment of Committee), within 60 days of the
Effective Date, at the Province's sole discretion,'the Parties will hold an initial
meeting to establish a committee to oversee the Agreement (the "Committee"). The
Committee's mandate will expire on the Expiry Date of the Agreement.
K.2.0 COMMITTEE MEMBERS, CO-CHAIRS AND OBSERVERS
K.2.1 Appointments by the Province. The Province will appoint two persons as
members of the Committee.
K.2.2 Appointments by the Recipient. The Recipient will appoint two persons as
member of the Committee.
K.2.3 Chairs of the Committee. The Committee will be headed by co-chairs chosen from
its members, one appointed by the Province and one appointed by the Recipient. If
a co-chair is absent or otherwise unable to act, the member of the Committee duly
authorized in writing by the Province or the Recipient, as applicable, to replace him
or her will act as co-chair in his or her place.
K.2.4 Non-committee Member Staff. The Parties may invite any of their staff to
participate in Committee meetings. The Province may invite up to two
representatives from Canada to sit as observers on the Committee. For greater
certainty, the staff and representatives) from Canada will not be considered
members and will not be allowed to vote.
K.3.0 MEETINGS AND ADMINISTRATIVE MATTERS
K.3.1 Rules of Committee. The Committee will:
(a) within 30 days of its initial meeting, establish rules and procedures with
respect to its meetings and those of any of its sub-committees, including and
consistent with those in this Schedule "K" (Committee);
Niagara Falls and Ontario PTIF TPA
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(b) meet at least two times a year, and at other times at the request of a co-
chair; and
(c) keep minutes of meetings approved and signed by the co-chairs as a true
record of the Committee meetings.
K.3.2 Quorum. A quorum for a meeting of the Committee will exist only when both co-
chairs are present.
K.4.0 COMMITTEE MANDATE
K.4.1 Mandate. Provided that no action taken by the Committee will conflict with the rights
of the Parties under the Agreement, the mandate of the Committee will include, but
not be limited to:
(a) monitoring compliance of the implementation of the Agreement including,
without limitation, the implementation of Schedule "G" (Communications
Protocol), with the terms and conditions of the Agreement;
(b) acting as a forum to resolve potential issues/disputes and address concerns;
(c) reviewing and, as necessary, recommending to the Parties amendments to
the Agreement;
(d) approving and ensuring audit plans are carried out as per the Agreement;
(e) establishing sub-committees as needed;
(f) at the request of the Province, review requests for payments; and
(g) attending to any other function required by the Agreement, including
monitoring project risk and mitigation measures, or as mutually directed by
the Parties.
K.4.2 Committee Decisions. Decisions of the Committee will be made as follows:
(a) the co-chairs will be the only voting members on the Committee; and
(b) decisions of the Committee must be unanimous and recorded in writing.
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K.5.0 ROLE OF THE RECIPIENT
K.5.1 Requirements. The Recipient undertakes to fulfill, in addition to any other
requirements provided for in this Schedule "K" (Committee), the following:
(a) establish a fixed location where the Agreement will be managed, and
maintain it until the expiry of the Committee's mandate and, if relocation is
required, establish a new location;
(b) prepare and retain, at the location described in paragraph K.5.1(a), and
make available to the Committee, all documents needed for the work of the
Committee, including payment request forms, approval documents, agendas
and minutes of meetings of the Committee and its subcommittees, and
contracts;
(c) ensure that any audit required of the Recipient pursuant to the Agreement is
carried out and the results are reported to the Committee;
(d) ensure that administrative and financial systems are developed and
implemented for the Project and the work of the Committee;
(e) promptly inform the Committee of all proposed changes to the Project; and
(f) provide the Committee, as requested and within the timelines set by the
Committee, and to the Committee's satisfaction, project status information
and outcomes data related to Schedule "D" (Reporting).
Niagara Falls and Ontario PTIF TPA
Page 169
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Niagara Falls and Ontario PTIF TPA
Page70
SCHEDULE "L"
I
Public Transit Infrastructure Fund (PTIF) Attestation Form
Karl Dren, Director of Transportation Services
City of Niagara Falls j
8208 Heartland Forest Road
Niagara Falls, ON L2H 01-7
I, Karl Dren, attest that:
s
1. Federal funding will support only Eligible Expenditures and that the Projects on the
Project List meet the provisions as specified in the Bilateral Agreement.
2. Project Incrementality has been met when one of the following conditions has been
met:
i
i) The project would not otherwise have taken place in 2016-17 or 2017-18;
and/or
ii) The project would not have been undertaken without federal funding.
i
This would include projects included in Ontario's 2016 Budget or 2016 municipal j
budgets where projects require additional funding to proceed and/or accelerate.
Dated, this Tuesday, October 18, 2016
Signature
Karl Dren
I
Niagara Falls and Ontario PTIF TPA Page 171
Onl.tlo
Wayne Gates
MPP, NIAGARA FALLS
Mayor's Office
City of Niagara Falls
4310 Queen Street, P.O. Box 1023
Niagara Falls, Ontario
L2E 6X5
RE: Live with Kelly and Ryan
Mr.Mayor Diodati,
I am writing this letter to thank all city staff and volunteers for the organization of the Live with
Kelly and Ryan event in Niagara Falls at Oakes Garden Theatre on June 51h and 61h, 2017.
I was fortunate enough to be present for this event and quite frankly I was impressed.
This was an incredible showcase of Niagara Falls and it truly highlighted the best this city has to
offer. The two day event spread our image to the whole world—I can imagine this will have a
positive impact on our local businesses.
As we all know Niagara Falls is a top tier tourist destination in the world and I believe that the
Kelly and Ryan show was a terrific way to further share that message with the world.
I hope that similar events are planned for the future and once again, I thank all who helped make
this wonderful event a reality—I know Niagara Falls is proud.
Thank you for your time and attention to this matter.
Best regards,
�(
Wayne Gates
MPP for Niagara Falls,Niagara-on-the-Lake and Fort Erie
Niagara Falls Fort Erie Niagara-on-the-Lake Queen's Park Office
6746 Morrison Street,Unit 1 Douglas Heights Senior Centre NOTL Public Library Room 361,Main Legislative Building,
Niagara Falls,ON L2E 6Z8 265 High St., 10 Anderson Lane Queen's Park,Toronto,ON M7A IA5 '.....
Tel 905-357-0681 Fort Erie,ON L2A 3R4 Niagara-on-the-Lake,ON LOS IJO Te1416-212-6102
Fax 905.357-9456 Tel 905-871-8868 Tel 289-241-2238 Fax 416-212-6106
wgates-co@ndp.on.ca Fax 905-871-4717 Fax 905-357-9456 wgates-qp@ndp.on.ca �,