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HomeMy WebLinkAboutCAO 10-05REPORT TO COUNCIL Report Number: CAO 10-05 Date: June 20, 2005 From: Thomas J. Quinn Chief Administrative Officer Subject: Highway 401 Pedestrian Bridge Project - Authorization to Proceed to Detailed Design File: D 1210-002 Recommendation: 1. That Report CAO 10-05 concerning the Highway 401 Pedestrian Bridge Project be received. That Totten Sims Hubicki Associates (TSH) be invited to submit a proposal to the City for consulting services with respect to the preparation of design drawings for the Highway 401 Pedestrian Bridge Project as well as the completion of the required environmental assessments; and should this proposal be acceptable to the Chief Administrative Officer (CAO) and within the approved budget, that the appropriate City officials be authorized to enter into an agreement with TSH for the provision of consulting services with respect to this Project. That staff be authorized to finalize a Funding Agreement with the Province for the Highway 401 Pedestrian Bridge Project, generally as set out in Attachment 2 to this Report, and once finalized, that the appropriate City officials be authorized to execute that Agreement. That staff be authorized to submit an application for federal funding assistance for the Highway 401 Pedestrian Bridge Project to the Federation of Canadian Municipalities' Green Municipal Funds program, and to any other applicable federal funding programs. Executive Summary: Council direction is required on various matters related to the City's proposed Highway 401 Pedestrian Bridge Project, including: (i) the provision of consulting services for the project; (ii) the finalization of a Funding Agreement with the Province, and (iii) the submission of an application for federal funding assistance to the FCM's Green Municipal Funds as well as any other applicable federal funding programs. Report CAO 10-05 Subject: Highway 401 Pedestrian Bridge Project Date: June 20,2005 Page 2 Specifically, Council's direction is required with respect to engaging a consultant to provide services to the City concerning the design of the bridge and the completion of the required environmental assessments. In this regard, Council should consider inviting Totten Sims Hubicki (TSH) to submit a proposal to the City. TSH has been involved with the City in the Pedestrian Bridge Project from the outset, starting with the design and construction of the Highway 401 bridge footings in 1995 and more recently with respect to the preparation of bridge concept drawings. It would be reasonable, appropriate and cost-effective to continue to use the services of TSH for the required design and environmental assessment work. Should Council concur, an appropriate recommendation is provided that would invite TSH to submit a written proposal to the City, and would authorize the appropriate City officials to enter into an agreement with TSH, providing the proposal is acceptable to the Chief Administrative Officer (CAO) and within the approved budget. A recommendation is also provided that would authorize the appropriate City officials to finalize and execute a Funding Agreement with the Province, which Agreement would commit the Province to contributing 1/3 of eligible project costs, up to a maximum of $1.08 million. And finally, it is recommended that Council authorize staff to seek federal funding assistance with respect to the Bridge Project through the submission of a grant application to FCM's Green Municipal Funds program, and to any other applicable federal programs. Financial Implications: This Report seeks authorization for various matters related to the design of the Highway 401 Pedestrian Bridge Project and the completion of the required environmental assessments. It does not seek authorization for bridge construction. Bridge construction will be considered at a later date, after more information on construction costs becomes available through the design process. In approving the 2005 budget, Council allocated $300,000 for the design of the pedestrian bridge. It should also be noted that consulting costs are an eligible expense under the Provincial Funding Agreement, which will help offset the cost to the City for the provision of these services. Background: The Highway 40! Pedestrian Bridge PFoject has beer unde:- consideration by the City for many years, in 1995, Council authorized the expenditure of funds so that footings for the pedestrian bridge could be establisiqed witt~in the Highway 401 road allowance. Totten Sims Hubicki (TSH) provided consulting services to the City for the design and construction of these footings. Report CAO 10-05 Subject: Highway 401 Pedestrian Bridge Project Date: June 20, 2005 Page 3 In 1997, Council adopted a new official plan encouraging as a high priority, the establishment of a "bridge for pedestrians and cyclists over Highway 401 linking the Downtown Core and the GO Transit Station." That same year, Council adopted Development Guidelines for the Pickering Downtown Core showing the location of the bridge. In April 2002, Council signed a confidential Memorandum of Understanding (MOU) with a private sector partner for the construction of the bridge. The MOU was later replaced with a bridge agreement between the City and the private sector partner, which was executed in January 2004. However, in August 2004, this bridge agreement was terminated because the private sector partner was unable to obtain various required approvals within the timeframes specified in that agreement. Following the termination of the private sector agreement, the City asked TSH to prepare a new set of conceptual drawings for the bridge (the earlier drawings that TSH had prepared were for the private sector partner and were based on a different concept of the bridge). The conceptual drawings prepared for the City are attached as Attachment 1 to this Report.. In 2002, the City applied for a provincial grant to assist in constructing the Highway 401 Pedestrian Bridge under a program known then as GTIP (Golden Horseshoe Transit Investment Partnerships). In June 2003, the Province announced a number of transit projects for funding under GTIP, ' ' ' , · . Includ~ng the C~tys pedestrian bridge. The GTIP program allowed for grants up to 1/3 the estimated cost of the project. For the City's project, this amounted to a grant of up to $1.08 million. Unfortunately however, the City was not in a position to execute its GTIP Agreement with the Province at that time, because certain matters respecting the City's agreement with our private sector partner had not been totally resolved. With the termination of the private sector agreement, staff contacted the Province to confirm the status of the City's GTIP grant. We were advised that the program is still applicable, albeit under a new name (the "Provincial Transit Expansion Funding Program"). We were also advised that the City's Highway 401 Pedestrian Bridge Project still qualifies for funding assistance up to $1.08 million, and that the end-date for financial assistance has now been extended to the end of March 2007. We therefore asked the Province to send us a new Funding Agreement template (see Attachment 2). This new Agreement must be executed generally in the form as provided by the Province before funding assistance can be provided. It is therefore recommended that Council authorize staff to finalize and execute this Agreement in order to secure the Province's funding commitment for the bridge. Also, to mo~/e this project beyond the conceptua; stage, staff is seekino Council's authorization to invite TSH to submit a written proposal fo~' consulting serv~'~es for the design of the bridge and the completion of the ~equired ,~ ' ,= ~ ~ ~nvlronm~nLa, assessments (a provincial environmental assessment is required, and possibly also a federal assessment should the City be able to secure federal funding assistance). TSH is an appropriate and logical choice for this assignment given the fact that it has been Report CAO 10-05 Subject: Highway 401 Pedestrian Bridge Project Date: June 20,2005 Page 4 involved with this project from the outset, initially with the design and installation of the footings, then as a consultant to our private sector partner, and more recently with respect to the preparation of the City's conceptual bridge drawings. Furthermore, over the years, TSH has successfully completed numerous infrastructure assignments for the City as well as many other municipalities, and has a proven track record with respect to environmental assessments, bridge architecture and planning, and structural design. The City's Purchasing Policy allows the Manager, Supply and Services to award consulting contracts up to a value of $54,000, subject to the CAO's approval and a written report to Council apprising them of the award. For values in excess of $54,000 (as would be the case in this instance), the Policy requires a competitive method of purchase for consulting services, unless Council provides other instructions. Considering TSH's long-standing relationship with this project and their expertise in this area, appropriate circumstances exist whereby it would be advantageous and cost- effective to directly engage the services of TSH for this assignment. Should Council agree to proceed on this basis, TSH should be invited to submit a written proposal to the City, and authorization should be given to the appropriate City officials to enter into an agreement with TSH to provide consulting services in the event the proposal is acceptable to the CAO and within the approved budget. A purchase order would be issued following the execution of an agreement with TSH. In the 2005 federal budget, the Government of Canada provided additional support to the Federation of Canadian Municipalities (FCM) Green Municipal Funds program. New criteria for this program are currently being be developed by FCM and will be released shortly. We also understand that new "Intents to Apply" for federal funding under this program will be accepted by FCM in Autumn 2005. Staff contacted FCM to advise of the City's Highway 401 Pedestrian Bridge Project, including our interest in integrating solar photovoltaic and/or other green technology into the bridge structure. FCM informed the City that the bridge project as described would appear to merit consideration for a grant under the new Green Municipal Funds program. It is therefore recommended that Council also authorize staff to seek federal funding assistance with respect to the Highway 401 Pedestrian Bridge Project through FCM's Green Municipal Funds as well as any other applicable federal funding programs. Attachments: ,. ~.on,.~p. Drawings of the, Hroposec Pedes'[rian Bridge 2. Provincial Funding Agreement'r~-,-.+= Report CAO 10-05 Subject: Highway 401 Pedestrian Bridge Project Date: June 20, 2005 Page 5 Prepared By: Approved / Endorsed By: Thomas E.M.el~,~uk ' Division Head, Corporate Projects & Policy (~ i°e?,~,d m ins J ' L~sU~rative Onn ' fficer TJQ:tm Attachments Copy: Directors Division Head, Corporate Projects & Policy Division Head, Municipal Property & Engineering Recommended for the consideration of Pickering City,Council Thomas J. Quin,~uin~Ch~ff Admini~ve Officer¢ Attachment 1 Report CAO 10-05 City of Pickering Highway 401 Pedestrian Bridge Concepts Attachment 2 Report CAO 10-05 Draft Version: May 16, 2005 PROVINCIAL TRANSIT EXPANSION FUNDING TEMPLATE AGREEMENT TO ASSIST THE RECIPIENT TO BETTER UNDERSTAND THE MINISTRY'S EXPECTATIONS WHEN DRAFTING THE SCHEDULES [NOTE: THE MINISTRY MAY MAKE CHANGES TO THIS TEMPLATE AT ANY TIME AND FOR ANY REASONS WHATSOEVER. ANY CHANGES THAT MAY POTENTIALLY AFFECT THE SUBSTANCE OF THE TEMPLATE IS SUBJECT TO REVIEW BY AND APPROVAL FROM THE MINISTRY'S LEGAL SERVICES BRANCH.] DRAFT PROVINCIAL TRANSIT EXPANSION FUNDING AGREEMENT FUNDING AGREEMENT RELATED TO PROVINCIAL TRANSIT EXPANSION FUNDING THIS AGREEMENT made in triplicate as of the 2OO BETWEEN: day of HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, represented by the Minister of Transportation for the Province of Ontario referred to herein as the "Ministry" AND: referred to herein as the "Recipient" WHEREAS the Government of Ontario is investing in Ontario's Infrastructure ("Infrastructure" has the meaning given to it in section 1 of Schedule "A" (General Terms and Conditions)); AND WHEREAS the purpose of the provincial transit expansion funding (the "Program") is to support the expansion of inter-regional transit Infrastructure within Ontario: AND WHEREAS Ontario's obiectives for the Program inciude working' with municipalities to build strong communities with clean and healthy environments, soivin9 inter-regional and region-wide congestion and growth pressures, positioning inter- regional transit as an attractive and financially viable alternative to automobile use, and encouraging balanced, integrated planning and investment decision-making between highway and transit modes; AND WHEREAS the Ministry is administering the Program; AND WHEREAS the Recipient has submitted an Expression of Interest ("Expression of interest" has the meaning given to it in section 1 of Schedule "A" (General Terms and Conditions)) for the Project ("Project" has the meaning given to it in section 1 of Schedule "A" (General Terms and Conditions)) which has been accepted for financial assistance by the Ministry; AND WHEREAS this Agreement defines the terms and conditions of a financial contribution to assist with the Project; NOW THEREFORE in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties covenant and agree as follows: This Agreement, including: Schedule "A" - Schedule "B" - General Terms and Conditions; Description of the Project: Attachment 1 - [?] Sub-project; Attachment 2 - [?] Sub-project; and Attachment 3 - [?] Sub-project; Schedule "C" - Financial Assistance; Schedule "D" - Other Funding; Schedule "E" - Additional Provisions; Schedule "F" - Form of Certificate of Title; [Note: Whether this schedule is required will need to be assessed on a case by case basis.] Schedule "G"- Form of Legal Opinion; [Note: Whether this schedule is required will need to be assessed on a case by case basis.] Schedule "H"- Communications Requirements Attachment 1 - Visual Identity Signage; and Schedule "1"- Performance Measurement constitutes the entire agreement between the parties with respect to the subject matter contained in this Agreement and supersedes all prior oral or writter~ representations anc~ agreements. IN WITNESS WHEREOF, the Ministry and the Recipient have respectively executed and delivered this Agreement as of the date set out above. [Note: There are three requirements: 1) The Agreement needs to be signed by the Mayor and the City Clerk, unless there is an express delegation of authority to municipal servant(s). In such case, the Recipient needs to provide the Ministry with a copy of the delegation; 2) All necessary information must be provided (i.e. name legibly written and title); and 3) The Municipality must provide a copy of the municipal by-law, including a confirmation by-law, as proof of authorization by the municipal council for the Recipient's to enter into the Agreement.] HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, represented by the Minister of Transportation for the Province of Ontario by: Name: Title: - [Note: Name of the Recipient.] by: Name: Title: Name: Title: I/we have authority to bind the Recipient SCHEDULE "A" GENERAL TERMS AND CONDITIONS TO AN AGREEMENT RELATED TO THE FUNDING OF PROVINCIAL TRANSIT EXPANSION BETWEEN THE MINISTER OF TRANSPORATION FOR THE PROVINCE OF ONTARIO AND THE [Name of Recipient] ARTICLE I DEFINITIONS AND INTERPRETATION Definitions. When used in this Agreement (including the cover and execution pages and all of the schedules), the following terms shall have the meanings ascribed to them below: "90% of Maximum Financial Assistance" means the amount set out in Schedule "C" (Financial Assistance) hereto. "Adjust the Financial Assistance" means adjust the amount of the Financial Assistance on the Project or the amount of financial assistance for any other project(s) of the Recipient under the Program, or any other provincial program(s) (either current or future), and/or require repayment of some or all of the Financial Assistance of the Project in an amount to be determined by the Ministry and within the period specified by the Ministry. "Agreement" means this Program agreement, including the cover and execution pages and all of the schedules hereto, and all amendments made hereto in accordance with the provisions hereof. "Allowable Financial Assistance" has the meaning given to it in section 45 (Allowable Financial Assistance) of this Schedule "A" (General Terms and Conditions). "Alternative .Funds" has the meaning given to it in Schedule "D" (Other Funding). "Asset" means any Infrastructure or land or any interest in land for which Financial Assistance is provided pursuant to this Agreement. "Budget" means the Project costs set out in Schedule "B" (Description of the Project). "Business Day" means any day on which Government of Ontario offices generally are open for business in the Province of Ontario. 4 "Communications Requirements" means the communications requirements set out in Schedule "H" (Communications Requirements) hereto, or as directed by the Ministry from time to time. "Consultant" means any consultant, engineer, contractor, project manager, architect or other service provider, as the case may be, retained by the Recipient to undertake any part of the work related to the Project. "Crown Agency" means a crown agency as defined in the Crown Agency Act (Ontario). "Eligible Cost" has the meaning given to it in section 9 (Eligible Costs) of this Schedule "A" (General Terms and Conditions). "End of Financial Assistance Date" means March 31, 2007. [Note: MTO is currently addressing the issue of date changes (if required), and will advise when a decision is made.] "Environmental Contaminant" means any hazardous or toxic substance or material including, without limitation, products of waste, contaminants, pollutants, dangerous substances, noxious substances, toxic substances, hazardous wastes and flammable, explosive or improperly handled friable materials. "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 includes, without limitation, the Environmental Protection Act (Ontario), the Ontario Water Resources Act, the Environmental Assessment Act (Ontario), the Canadian Environmental Protection Act, '1999, the Canadian Environmental Assessment Act, the Fisheries Act (Canada) and the Navigable Waters Protection Act (Canada). "Event of Default" has the meaning given to it in section 68 (Event of Default) of this Schedule "A" (General Terms and Conditions). "Expiration Date" means March 31, 2009. [Note: MTO is currently addressing the issue of date changes (if required), and will advise when a decision is made.] E×pr~ss,or~ of Interest refers to the response provided to the Ministry's request for expression of interest issued in December 200I. "Final Report" has the meaning given to it in section 41 (Final Report) of this Schedule "A" (General Terms and Conditions). "Final Report Date" means October 31, 2008. [Note: MTO is currently addressing the issue of date changes (if required), and will advise when a decision is made.] "Financial Assistance" means the funds to be advanced by the Ministry to the Recipient pursuant to this Agreement. "Generally Accepted Accounting Principles" means Canadian Generally Accepted Accounting Principles as adopted by the Canadian Institute of Chartered Accountants applicable as at the date on which such calculation is made or required to be made in accordance with Generally Accepted Accounting Principles. "Generally Accepted Auditing Standards" means Canadian Generally Accepted Auditing Standards as adopted by the Canadian Institute of Chartered Accountants applicable as at the date on which such record is kept or required to be kept in accordance with Generally Accepted Auditing Standards. "Ineligible Costs" has the meaning given to it in section 12 (Ineligible Costs) of this Schedule "A', (General Terms and Conditions). "Infrastructure" means publicly or privately owned fixed capital assets in Ontario for public use or benefit. For the purpose of this Agreement, Transit Vehicles (as defined in this section 1 of Schedule "A" (General Terms and Conditions)) shall be deemed fixed capital assets. "Licensed Marks" has the meaning given to it in section 61 (Licensed Marks) of this Schedule "A" (General Terms and Conditions). "Mandatory Other Funds" means ninety-five percent (95%) of the Total Other Funds. "Maximum Financial Assistance" means the amount set out in Schedule "C" (Financial Assistance). "Ministry" has the meaning given to it on the first page of this Agreement. "Municipality" means a municipality as defined in the Municipal Act, 2001 (Ontario) and also includes local services boards as defined in the Northe~:n Serwces Boards Act (Ontario) and other appropriate local authorities in unorganized areas. "Other Funds" means the amount of funding provided towards the Project from sources other than the Recipient or the Ministry and as set out in Schedule "D" (Other Funding). "Payment Certifier" means a payment certifier as defined in the Construction Lien Act (Ontario). "Procurement Policies" means the Ontario Government policies and directives in effect from time to time respecting the procurement of equipment, services and supplies, including construction, applicable to Ontario Government ministries and Crown Agencies and the Broader Public Sector (as defined from time to time in the procurement policies). "Program" has the meaning given to it on the first page of this Agreement. "Progress Report" has the meaning given to it in section 40 (Progress Reports) of this Schedule "A" (General Terms and Conditions). "Project" means the [Note: add the number of Sub-projects.] Sub-projects as a whole. "Provincial Share" means the amount set out in Schedule "C" (Financial Assistance). "Public Transportation" means any service for which a fare is charged for transporting the public by vehicles operated by or on behalf of a municipality or local board thereof, or under an agreement between a municipality and a person, firm or corporation and includes special transportation facilities for the physically disabled, but does not include transportation by special purpose facilities such as school buses or ambulances. "Public Transportation Vehicle" means a streetcar, a bus or a trolley bus used for Public Transportation. "Rapid Transit Vehicle" means a subway car or light rail car used for Public Transportation. "Recipient" has the meaning given to it on the first page of this Agreement. "Reserve Lands" means a reserve as defined in the Indian Act (Canada). "Schedule "B'"' means Schedule "B" (Description of Project) including all of the Sub-project Attachments. "Schedule "H" means Schedule "H" (Communications Requirements)" including Attachment 1 (Visual Identity Signage) to Schedule "H". "Sub-project" refers to any of the sub-projects that are described in Schedule "B" (Description of the Project). "Sub-project Attachments" means the sub-project attachments to Schedule "B" (Description of the Project) which describe each Sub-project. "Sub-project Milestones" means the key Sub-project tasks and timelines described in Schedule "B" (Description of the Project). "Sub-project Schedule" means the Sub-project schedule(s) set out in Schedule "B" (Description of the Project). "Substantially Performed" has the meaning set out in and shall be determined in accordance with subsection 2(1) of the Construction Lien Act (Ontario). "Total Eligible Costs" means the amount set out in Schedule "C" (Financial Assistance) hereto. "Total Other Funds" means the amount set out in Schedule "D" (Other Funding) hereto° "Total Project Costs" means the total of the Eligible Costs and Ineligible Costs incurred from April 1, 2002 to March 31, 2007, including the costs that are reimbursed by the Financial Assistance up to [Note: need to insert the correct amount.] as set out under section 3 (Table B1 summary of costs related to the Project) of Schedule "B" (Description of the Project). [Note: MTO is currently addressing the issue of date changes (if required), and will advise when a decision is made.] "Total Sub-project Costs" means the aggregate of the costs of the components for each Sub-project incurred between April 1, 2002 to March 31,2007, including the costs that are reimbursed by the Financial Assistance as set out under section 5 (Table B3 summary of costs related to the Sub-project components) of the Sub- project Attachments. [Note: need to insert the correct number of attachments.] [Note: MTO is currently addressing the issue of date changes (if required), and will advise when a decision is made.] "Trade Agreements" means the Agreement on interna! Trade and the Agreement on the Opening of Public Procurement for Ontario and Quebec, and all amendments to those agreements. "Transit Vehicle" means either a Public Transportation Vehicle or Rapid Transit Vehicle. Herein, etc. The words "herein", "hereof" and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular schedule, article, section, paragraph or other subdivision of this Agreement. Currency. Any reference to currency is to Canadian currency and any amount advanced, paid or calculated is to be advanced, paid or calculated in Canadian currency. Statutes. Any reference to a statute is to such statute and to the regulations made pursuant to such statute as such statute and regulations may at any time be amended or modified and in effect and to any statute or regulations that may be passed that have the effect of supplementing or superseding such statute or regulations. Gender, singular, etc. Words importing the masculine gender include the feminine or neuter gender' and words in the singular include the plural, and vice versa. ARTICLE II TERM OF AGREEMENT Term. Subject to any extension or termination of this Agreement or the survival of any of the provisions of this Agreement pursuant to the provisions contained herein, this Agreement shall be in effect from the date set out on the first page of this Agreement, up to and including the Expiration Date. End of Financial Assistance Date. Notwithstanding anything else in this Agreement and no matter what the state of completion of the Project, the Ministry shall not be obligated to provide Financial Assistance under this Agreement after the End of Financial Assistance Date. Change to End of Financial Assistance Date. Subject to prior Cabinet approval, upon request from the Recipient in writing within nine (9) months of the following dates, the Ministry may, at its sole discretion, change the End of Financial Assistance Date, Final Report Date and Expiration Date. ARTICLE III ELIGIBLE COSTS 9 10. 11. Eligible Costs. In order for a cost or expenditure to be eligible for Financial Assistance (an "Eligible Cost") pursuant to this Agreement, the cost or expenditure must: (a) be reasonable; (b) be directly related to and necessary for the due implementation of the Project described in Schedule "B" (Description of the Project). For greater certainty, where Schedule "B" (Description of the Project) identifies any item that is specifically excluded from the description of the Project under this Agreement, the costs associated with such item are not eligible; (c) be specifically identified in the Budget; (d) have been incurred after April 1,2002 and no later than March 31, 2007, except where otherwise expressly approved by the Ministry in writing; and [Note: MTO is currently addressing the issue of date changes (if required), and will advise when a decision is made.] (e) be able to be documented at arms length through paid invoices or receipts. Retention of receipts. The Recipient shall retain all evidence (such as invoices, receipts, etc.) of payment related to Eligible Costs and such supporting documentation must be made available to the Ministry or any third party or both, as the Ministry may direct in writin9 from time to time, when requested and maintained by the Recipient for audit purposes. Possible Eligible Costs. Without limitation and provided that the criteria of section 9 (Eligible Costs) of this Schedule "A" (General Terms and Conditions) are met, Eligible Costs are as follows: (a) costs related to the purchase of land and any interest in land; (b) capital costs (as defined by Generally Accepted Accounting Principles) of acquiring, constructing or renovating the Asset or any part of the Asset, including all applicable taxes but excluding any tax rebates for which the Recipient is eligible and except as specifically excluded by section 12 (Ineligible Costs) below: (c) Project planning and management costs; (d) professional fees of arm's length Consultants (including, but not limited to, design, engineerin9 and legal); (e) transportation and delivery costs; ]0 (f) installation and renovation costs; (g) specialized training costs (e.g. training on new equipment); (h) architectural, engineering and heritage studies related to the Project; (i) risk assessment and technical studies; (J) communications costs insofar as they relate to the Communications Requirements and only to the extent allowed by the Communications Requirements; (k) official opening ceremony costs insofar as they relate to the Communications Requirements and only to the extent allowed by the Communications Requirements; off-site services costs as they may be approved by the Ministry and provided that they are necessary for the Project's completion, are reasonable in nature and in distance and are for the Proiect's principal use; (m) the cost of insurance required pursuant to this Agreement; and (n) the capital cost (as defined by Generally Accepted Accounting Principles) of special purpose equipment necessary for the operation of the Asset. 12. Ineligible Costs. Notwithstanding anything else contained herein, the following costs and expenditures are not eligible ("Ineligible Costs") for Financial Assistance pursuant to this Agreement: (a) (b) (c) (d) costs of developing the business case for the purposes of applying for Financial Assistance in relation to the Project under this Agreement; costs related to the operation and maintenance of any capital assets; costs associated with obtaining necessary approvals, licenses or permits where the Recipient is the entity providing the approval, license or permit; costs associated with leasing land, buildings, equipment (except equipment described in section 1 l(n) (Possible Eligible Costs) of this Schedule "A" (General Terms and Conditions)) or other facilities; save and except for cost associated with leasing land and buildings required to perform the work necessary to complete the Project and for which prior approval in writing has been received from the Ministry; 13. 14. (e) costs associated with general feasibility or general planning studies unless they form part of the Project and have received prior approval in writing from the Ministry; (0 costs associated with fundraising campaigns, capital project financing or operating leases; (g) (h) costs associated with services or work normally provided by the Recipient as part of its operating budget or any agency of the Recipient; the 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; (i) contributions or commitments in kind; (J) costs associated with furniture, fixtures, decorations, fitting-up supplies, and the like; (k) costs associated with Recipient travel; costs deemed ineligible under section 13 (Deemed ineligible) of this Schedule "A" (General Terms and Conditions); and (m) any other costs as determined by the Ministry from time to time and in its sole discretion. Deemed ineligible. The Recipient acknowledges that the Ministry's fiscal year ends on March 31 in each year, and that should an Eligible Cost not be submitted by the Recipient for payment of Financial Assistance before March 31 of the year following the fiscal year in which it was incurred, such Eligible Cost shall be deemed ineligible for Financial Assistance. Clarification. For clarity, the Recipient hereby expressly acknowledges that the inclusion of an item in the Budget does not necessarily mean that such item is an Eligible Cost. Where there is a conflict between the Budget and this Article III (Eligible Costs), the provisions of this Article III (Eligible Costs) shall prevail. ARTICLE IV FINANCIAL ASSISTANCE Use o¢ Finance, al Assistance,, The Financiai Assistance i=: intended f'o,~ and shal~ be used only for Eiigibie Costs. 16. Basis of pay-out of Financial Assistance. The Financial Assistance will be provided by the Ministry to the Recipient on the basis set out in Schedule "C' · (Financial Assistance). 17. Under-spending of the Provincial Share of the Total Project Costs. Within the Project, any under-spending of the Provincial Share of the Total Project Costs allocated to a Sub-project may be reallocated to any other Sub-project within the Project, subject to the Ministry's prior written approval. 18. Funds advanced. If the Ministry, in its sole discretion and only in exceptional circumstances, provides Financial Assistance prior to the Ministry receiving evidence that the associated Eligible Costs have already been paid by the Recipient, then such Financial Assistance, including all interest earned thereon, remains the property of the Ministry and must be held by the Recipient in an interest bearing account pending payment of Eligible Costs. Without limitation, any payment of Financial Assistance that is made to the Recipient without the requirement of the Recipient first providing the Ministry with either a Progress Report or a Final Report must meet the requirements of this section 18 (Funds advanced). 19. Maximum Financial Assistance. The total amount of Financial Assistance provided to the Recipient shall in any event be no greater than the Maximum Financial Assistance. 20. Excess funds. Where actual costs are lower or appear likely to be lower than the Total Eligible Costs, or where other funding is secured from any other government sources such that the funds available to the Recipient for the Project, including the Financial Assistance, exceed the Maximum Financial Assistance, the Recipient shall immediately notify the Ministry and the Ministry may, in its sole discretion, Adjust the Financial Assistance. 21. Interdependent projects. Where implementation of the Project is dependent on completion of a project by others and the interdependent project is not completed by others in whole or in part, the Ministry may, in its sole discretion, Adjust the Financial Assistance. 22. Recipient not carrying out Project. The Recipient shall immediately notify the Ministry if it does not intend to carry out the Project in whole or in part as specified in Schedule "B" (Description of the Project) in which case the Ministry may, in its sole discretion, Adjust the Financial Assistance. 23. New information, in the event of new information, errors;, omissions or other circumstances affecting the determir~ation of the amoum of Financiai AssisTance 25. 26. 27. 28. 29. under this Agreement, the Ministry may, in its sole discretion, Adjust the Financial Assistance. GST, The Financial Assistance is based on ;he ~qet ~mount of goods and services 'tax to be paid by the Recipient pursuant to the Excise Tax ,act (Canada) net of any applicable rebates. '. . Withholding payment. The Ministry may, in its sole discretion, withhold payment of Financial Assistance where the Recipient is in default in obtaining any necessary permits, approvals or licenses applicable to the Project, is in default of compliance with any provisions of this Agreement or any applicable legislation, the Recipient owes the Ontario Government money under any other project or program funded by the Ontario Government, or if, following joint reviews by the Recipient and the Ministry, the Ministry is not satisfied that there is adequate evidence of progress being made. Insufficient funds provided by the Legislature. If, in the opinion of the Ministry, the Legislative Assembly of Ontario does not provide sufficient funds to continue the Financial Assistance for any provincial fiscal year during which this Agreement is in effect, the Ministry may terminate this Agreement in accordance with the terms specified in section 72 (Termination without cause) of this Schedule "A" (General Terms and Conditions). ARTICLE V PROJECT AWARD, MANAGEMENT AND COMPLETION Recipient fully responsible. The Recipient shall be fully responsible for the undertaking, implementation and completion of the Project, retain any and all Consultants reasonably required to undertake a project of the size, scope and complexity of the Project, and ensure that the Project is completed on or before 2007 unless otherwise agreed to by the Ministry in writing. Where implementation of the Project is dependent on completion of a project by others, the Recipient shall be fully responsible for obtaining any assurances that it may require from others in relation to the implementation of the Project by the Recipient. Ministry not responsible for implementation. The Ministry shall not be responsible in any way whatsoever for the undertaking, implementation and completion of the Project or any interdependent project of others. Ministry not responsible for costs. The Ministry shall not be responsible for any costs associated with the operation, maintenance and repair of the Project nor any claims arising from the tender and bidding process. ]4 30. 32. 33. 34. Behaviour of Recipient. The Recipient shall carry out the Project in an economical and businesslike manner, in accordance with this Agreement and, Jn pa~icuiar but without limitation, in accordance with ..;.he Budget and the Sub-project Schedule~ubi~,-t.~ to any ~'easonable changes. ;:hat the Ministr,;.. .,'nav. agree ~o or require from time to time in writing. Competitive process. The Recipient shall acquire all equipment, services and supplies required for the Project through a competitive process that ensures the best value for funds expended. For equipment, services and supplies the estimated cost of which exceeds twenty five thousand dollars ($25,000) the Recipient shall obtain at least three (3) written quotes unless: (a) the expertise the Recipient is purchasing is specialized and is not readily available; or (b) the Recipient has recently researched the market for a similar purchase and knows prevailing market costs for the equipment, services or supplies purchased. Competitive tender. All portions of the construction component of the Project (including materials and equipment) shall be competitively and openly tendered to competent contractors capable of completing the construction component of the Project, and the contract will be awarded to the lowest qualified, bidder or, where the bid price is not the sole specified selection criterion, the highest ranked bidder. Procurement Poficies and Trade Agreements. If the Recipient is subject to the Procurement Policies, the Trade Agreements or both, it shall comply with the requirements of the Procurement Policies and the Trade Agreements as applicable. In the event of any conflict between the requirements of sections 31 (Competitive Process) and 32 (Competitive Tender) of this Schedule "A" (General Terms and Conditions) and the Procurement Policies or the Trade Agreements, the requirements of the Procurement Policies or the Trade Agreements shall apply. Long-term capital management plan. The Recipient shall prepare and update annually thereafter a long-term capital asset management plan which outlines how the Recipient intends to meet its financial and other commitments for maintaining the Asset on an ongoing basis, including plans to recover the full operating costs through service charges where appropriate. Upon request, the Recipient shall provide to the Ministry a copy of the current long-term capital management plan. ARTICLE VI RECORDS AND AUDIT 35. Separate records. 'The Recipient shall maintain separate records and documentation for the Project and keep ail records and documentation for seven (7) years after the final settlement of accounts referred to Jn section 42 (Final claims) of this Schedule ",~" ~'" ¢.:eneral Terms and ""-* .... ,,, ' · ,.~,,ndmons.). ,-F'~e Recipient shall maintain all records and documentation relating to the Project including, but not limited ~o, work authorizations, invoices, time sheets, payroll records, estimates and actual cost of the activities carried out pursuant to this Agreement, together with tenders and proposals, final measurements, payment certificates, change orders, correspondence, memoranda, contracts and amendments thereto which shall be maintained in accordance with Generally Accepted Accounting Principles and the Generally Accepted Auditing Standards. 36. Provide records to Ministry. The Recipient shall make available and provide, upon request, at the Recipient's expense (including but not limited to photocopying, electronic media, transportation and postage, associated staff time, information retrieval and other office expenses) all records and documentation (including invoice summaries and certified statement of final costs) of the Recipient and its auditors, contractors, project managers and consultants relating to the Project or any other project(s) of the Recipient under the Program, or any other provincial program(s), for the purposes of cost reviews, audits and settlement, as deemed by the Ministry, of the Project or any other project(s) of the Recipient under the Program, or any other provincial program(s); such material to be provided to the Ministry and other ministries of the Province of Ontario as may be required from time to time, all in a form and manner satisfactory to the Ministry and other ministries of the Province of Ontario, as applicable. 37. External auditor. The Ministry may require the assistance of an external auditor to carry out an audit in accordance with Generally Accepted Auditing Standards of the material referred to in sections 35 (Separate records) and 36 (Provide records to Ministry) of this Schedule "A" (General Terms and Conditions). If so, the Recipient shall, upon request and at the Recipient's expense, retain an external auditor acceptable to the Ministry. The Recipient shall ensure that any auditor who conducts an audit pursuant to this section 37 (External auditor) or otherwise, provides a copy of the audit report to the Ministry for its consideration at the same time that the audit report is given to the Recipient. 38. Information. The Recipient shall supply, upon request, such information in respect of the Project and its results, including without limitation all contracts and agreements related to the Project and all plans and specifications related to the Project, as the Ministry, external auditor or Provincial Auditor, including their agents and employees, may require. The Ministry, external auditor and Provincial Auditor, including their agents and employees, shall be allowed access to the Recipient's premises and staff and to the site to: (i) inspect the progress and monitor the Project; (ii) perform cost reviews and audits on the Project; and (iii) ]6 39. confirm the results of the Project in terms of achieving the objectives of the Program, including resolving any infrastructure problems that cause an immediate and serious probtem for human health or the environment. information condition precedent for payment. If, in the opinion of the Ministry, any' of the information requirements of 'this Article V! (Records and Audit) are not met, the Ministry may, in its sole discretion, require the information as a condition precedent to any payment in relation to the Project or any other project(s) of the Recipient under the Program or any other provincial program(s) (either current or future). In addition, the Ministry may, in its sole discretion, Adjust the Financial Assistance. 40. ARTICLE VII REPORTING REQUIREMENTS Progress Reports. The Recipient shall submit progress reports (a "Progress Report") for the Project to the Ministry from time to time as required by Schedule "C" (Financial Assistance) hereto, or as requested by the Ministry and the Recipient shall follow such administrative procedures as are specified from time to time by the Ministry. Upon request by the Ministry, the Recipient shall meet with Ministry staff to discuss the reports and status of the Project. All Progress Reports shall be in a form satisfactory to the Ministry and shall include: (a) a detailed description of the progress of the Project to the date of the report; (b) particulars of how the Communications Requirements have been implemented or applied; (c) (d) (e) (f) (g) (h) an interim unaudited financial statement showing Project expenditures and revenue certified by the chief financial officer of the Recipient; a certificate by a Payment Certifier or the chief financial officer of the Recipient certifying the percentage of the Project completed; an invoice summary, in the form(s) prescribed by the Ministry; when requested, all original invoices and receipts for the Project; details of any variance from the Project, the Budget and/or the Sub-project Schedule; and any other information respecting the Project that may be requested by the Ministry. 17 41. Final Report. Within three (3) months of the Project becoming Substantially Performed and no later than the Final Re~)ort Date or such longer period as is specified, in writing ~,v :the IVlinistrv,. the R~cipien~ shall submit a final, report. (the "F]r~al Report") for the Project to ~he ,¥1inistrv and the Recipient shall fotlcw such administrative procedures as are specified fiom time to time by the Ministry. The Final Report shall be in a form satisfactory to ~.he Ministry and shall include: (a) a detailed description of the Project as completed, including photographs; (b) (c) (d) (e) (f) (g) (h) particulars of how the Communications Requirements have been implemented or applied; a final unaudited financial statement showing Project expenditures and revenue certified by the chief financial officer of the Recipient; a certificate by a Payment Certifier or the chief financial officer of the Recipient certifying that the Project has been Substantially Performed; an invoice summary, as prescribed by the Ministry; when requested, all original invoices and receipts for the Project; details of any variance from the Project, the Budget and/or the Sub-project Schedule; details of how the objectives of the Program, as set out below, have been met: (i) (ii) (iv) (v) solving inter-regional and region-wide congestion and growth pressures; positioning inter-regional transit as an attractive and financially viable alternative to automobile use; achieving a significant automobile-to-transit modal shift in key commuter transportation markets, to achieve tangible regional environmental, economic and quality of life benefits; encouraging balanced, integrated planning and investment decision- making between highway and transit modes; and integrating transportation Infrastructure planning with land use development strategies have been met; and 42. 43. (i) any other information respecting the Project as may be requested by the Ministq/, including audited financial statements. Final claims. Upon receipt of ~he Final RepoF., (he iVlinistr,./snail not be oDiigated to consider any further claims in reia[ion to the Project. Fiscalyear-end report. Within thirty (30) days of March 31 of each year in which Eligible Costs are incurred, the Recipient shall provide to the Ministry an accounting of all Eligible Costs incurred in the twelve (12) months up until March 31. 44. 45. 46. 47. Subsequent report. Within eighteen (18) months and no earlier than twelve (12) months from the Project becoming Substantially Performed, the Recipient shall provide to the Ministry a report indicating how the Project's objectives identified in paragraph 41(h) (Final Report) of this Schedule "A" (General Terms and Conditions) and in Schedule 'T' (Performance Measurement) have been met. ARTICLE VIII OVERPAYMENT Allowable Financial Assistance. Funds advanced to the Recipient prior to settlement in accordance with section 42 (Final claims) of this Schedule "A" (General Terms and Conditions) shall not be construed as a final determination of the amount of Financial Assistance applicable to the Project. Upon conducting a cost review or audit of the Project, the Ministry will determine the final amount of Financial Assistance on the Project (the "Allowable Financial Assistance"). The Recipient agrees to repay to the Ministry, upon receipt of a written demand and within the period specified by the Ministry, that portion of the total of the funds advanced that exceeds the Allowable Financial Assistance applicable to the Project, as determined by the Ministry, as well as any funds used for a purpose other than that stated in the terms of this Agreement, as determined by the Ministry. Deduction of overpayment. The Ministry may deduct any overpayment of Financial Assistance pursuant to section 45 (Allowable Financial Assistance) of this Schedule "A" (General Terms and Conditions) made on the Project from financial assistance payable on any other project(s) of the Recipient under the Program or other provincial initiative(s) (either current or future). Any overpayment made on any other project(s) of the Recipient under the Program or other provincial program(s) (either current or future) may in turn be deducted from Financial Assistance owing on the Project. Interest on overpayment. The Ministry reserves the right to demand interest on any overpayment of Financial Assistance owing by the Recipient under the terms ]9 48. of this Agreement at the rate established for the purposes of section 10 of the Financial Administration Act (Ontario), as amended. The Recipient shall pay the smount of interest owing u.~on ~ecelp~ of a written demand and within the period specified by the Ministp;/ ARTICLE iX iNSURANCE AND BONDING Insurance, The Recipient agrees to put in effect and maintain or cause to be put in effect and maintained for the period during which this Agreement is in effect, with insurers acceptable to the Ministry, all the necessary insurance that would be considered appropriate for a prudent Recipient of this type undertaking a project similar to the Project, including, without limitation: (a) Comprehensive General Liability Insurance, to an inclusive limit of not less than five million dollars ($5,000,000) per occurrence for property damage, bodily injury and personal injury, and including, at least, the following policy endorsements: (i) Her Majesty the Queen in right of Ontario as an additional insured for the purposes of the Project only; (ii) Cross Liability; (iii) Contractual Liability; (iv) Independent Contractors; (v) Products and Completed Operations; (vi) Employer's Liability and Voluntary Compensation; (vii) Thirty (30) days written notice of cancellation; (viii) Tenants Legal Liability (if applicable); and (ix) Non owned automobile coverage with blanket contractual and physical damage coverage for Hired Automobiles. (b) Property Insurance to a limit commensurate to the full replacement cost value of the Asset on an "All Risks" basis (including earthquake and flood coverage where the Asset is located in the designated Ontario earthquake zone). The policy must include the following: (i) Replacement Cost Value; 2O 49. 50. (ii) Stated Amount Co-insurance; and Waiver of ouDrogauon. (c) Professional/Consultants Errors & Omissions Liability Insurance, insuring liability for errors and omissions ;n the performance or failure to perform professional services contemplated in this Agreement, in the amount of not less than two million dollars ($2 000,000) per claim and in the annual aggregate Certificate of insurance. Prior to any scheduled payment of Financial Assistance pursuant to this Agreement and throughout the term of this Agreement the Recipient shall provide the Ministry with a valid certificate of insurance which references the Project, confirms the above requirements and identifies major exclusions in the policy. The Recipient shall provide the Ministry a copy of the policy and any renewal or replacement certificates as may be necessary or required by the Ministry or both. Notwithstanding section 48 (Insurance) of this Schedule "A" (General Terms and Conditions) and the above and subject to any other remedy of the Ministry under this Agreement, where Financial Assistance is provided in accordance with section 18 (Funds advanced) of this Schedule "A" (General Terms and Conditions), a certificate of insurance must be provided by the Recipient no later than sixty (60) days after the date that the advance was made, failing which the Ministry may Adjust the Financial Assistance. Bonding. The Recipient shall put in effect and maintain in full force and effect or cause to be put into effect and maintained in full force and effect during the term of this Agreement: (a) a performance bond in the amount of fifty percent (50%) of the contract price for any construction contract related to the Project and which is for an amount greater than two hundred thousand dollars ($200,000) covering the performance of that construction contract and the correction of any deficiencies; and (b) a labour and material payment bond in the amount of fifty percent (50%) of the contract price for any construction contract related to the Project and which is for an amount greater than two hundred thousand dollars ($200,000) covering the payment for labour, material or both. ARTICLE X INDEMNITY 51. Ministry not liable. In no event shall the Ministry be liable for: 2] 52. 53. 54. 55. (a) any bodily injury, death or property damage to the Recipient, its employees, agents, or Consultants or for any claim, demand or action by any third party against the Recipient, its employees, agents, or Consultant.~, arising out of or in any way related to ihis Agreement or the Project; or (b) any incidental, indirect, speciai or consequential damages, or any loss of use, revenue or profit to the Recipient, its employees, agents, or Consultants arising out of or in any way related to this Agreement or the Project. Recipient to indemnify. The Recipient agrees to indemnify and hold harmless Her Majesty the Queen in right of Ontario, Her directors, officers, employees and agents from and against all suits, judgments, claims, demands, expenses, actions, causes of action and losses (including, without limitation, reasonable legal expenses and any claim for lien made pursuant to the Construction Lien Act (Ontario)) and for any and all liability for damages to property and injury to persons (including death) howsoever caused (except if caused by the Ministry's own negligence or willful misconduct), as a result of any claim, demand or action arising out of or in any way related to this Agreement or the Project. Further indemnity. The Recipient further agrees to indemnify and hold harmless Her Majesty the Queen in right of Ontario, Her directors, officers, employees and agents, for any incidental, indirect, special or consequential damages, or any loss of use, revenue or profit, by any person, entity or organization including the Ministry, arising out of or in any way related to this Agreement or the Project (except if caused by the Ministry's own negligence or willful misconduct). ARTICLE Xl TRANSFER OF ASSET Transfer of ownership. The Recipient shall not transfer the ownership of all or part of the Asset established with the Financial Assistance. Any transfer of ownership in contravention of this provision gives the Ministry the right to Adjust the Financial Assistance. Exception. Section 54 (Transfer of ownership) of this Schedule "A" (General Terms and Conditions) does not apply to a transfer of ownership to a Municipality, public utility commission or local services board provided that: (i) the Recipient obtains the prior written consent of the Ministry; and (ii) the Recipient, makes arrangements satisfactory to the Ministry regarding the obligation to repay the Ministry referred to in section 54 (Transfer of ownership) of this Schedule "A" (General Terms and Conditions). Any transfer of ownership by the Recipient in contravention of this provision does not relieve the Recipient of its obligation under section 54 (Transfer of ownership) of this Schedule "A" (General Terms and 22 57, 58. 59 60. Conditions) to repay the Ministry for some or all of the Financial Assistance in the amount determined by the Ministry and within the period specified by the Ministry. Lease. etc. The Recipient shail not iease, license the use of, mortgage, charge or encumber the Asset or any part thereof, without the prior written consent of the Ministry, except for the lease or iicensing of retail premises to concessionaires for the sale of services and products customarily offeied for sale in facilities such as the Asset provided that such retail premises do not in the aggregate exceed ten percent (10%) of the floor area of the Asset. Deduction from Financial Assistance. The Ministry may deduct the amount of Financial Assistance to be repaid under section 54 (Transfer of ownership) of this Schedule "A" (General Terms and Conditions) from financial assistance payable on any other project(s) of the Recipient under the Program or any other provincial program(s) (either current or future). ARTICLE XII CONFLICT OF INTEREST AND CONFIDENTIALITY No conflict of interest. The Recipient and its Consultants and any of their respective advisors, partners, directors, officers, employees, agents and volunteers shall not engage in any activity or provide any services where such activity or the provision of such services creates a conflict of interest (actually or potentially in the sole opinion of the Ministry) with the terms and conditions set out in this Agreement. The Recipient acknowledges and agrees that it shall be a conflict of interest for it to use confidential information of the Crown relevant to the Project or otherwise where the Ministry has not specifically authorized such use. Disclose potential conflict of interest, The Recipient shall disclose to the Ministry without delay any actual or potential situation that may be reasonably interpreted as either a conflict of interest or a potential conflict of interest. Freedom of Information and Protection of Privacy Act. The Recipient acknowledges that the Ministry is bound by the provisions of the Freedom of /nformation and Protection of Privacy Act (Ontario) and regulations thereunder. 61. ARTICLE Xlll COMMUNICATIONS AND RECOGNITION Licensed Marks. The Recipient acknowledges that Her Majesty the Queen in right of the Province of Ontario is or will be the owner of certain distinguishing marks comprised of designs, trademarks and official marks which have come or 23 63. 64. 65. will come to be associated with the Province of Ontario (all such current and future marks, being the "Licensed ~arks"!. Acknowiedgement /n .aa'verdsing anc~ publicity. The Recipient agrees to acknowledge the Financial Assistance of the Government of Ontario to the Project in all advertising and publicity reiatinq to the Project and in any construction signs and in any temporary or permanent t~ibutes to Project donors by adhering to the Communications Requirements. Use of Licensed Marks. In consideration of receiving the Financial Assistance, the Recipient agrees to use the Licensed Marks as follows: (a) the Recipient agrees to strictly use the Licensed Marks only as prescribed by the Communications Requirements and further as prescribed from time to time by the Ministry and not to use any other mark or trademark in combination with any of the Licensed Marks without the prior written approval of the Ministry. The Recipient agrees that it will not alter, modify, dilute or otherwise misuse the Licensed Marks; (b) the Recipient agrees to submit to the Ministry copies of any advertisements or'promotional materials containing the Licensed Marks for the Ministry's approval prior to any use thereof and to remove therefrom either any reference to the Licensed Marks or any element which the Ministry may from time to time upon reasonable notice designate; (c) the Recipient agrees that it will not state or imply, directly or indirectly, that the Recipient or the Recipient's activities, other than those permitted by this Agreement, are supported, endorsed, or sponsored by the Ministry and upon the direction of the Ministry shall issue express disclaimers to that effect; and (d) the Recipient agrees to promptly inform the Ministry of any suspected infringement of any Licensed Marks by a third party. Cease using Licensed Marks. Whether or not the Recipient is in breach of this Agreement, forthwith upon any receipt by the Recipient of a written direction from the Ministry, the Recipient shall cease using the Licensed Marks, and without limiting the generality of the foregoing, will remove all signage and remove from circulation any use or reference to the Licensed Marks. Indemnity. The Recipient hereby indemnifies the Ministry against any and all claims for death, illness, personal injury, property damage, improper business practices, or loss of any kind where such claims are in whole or in part premised upon the Recipient's use of the Licensed Marks. 24 ARTICLE XiV COVENANTS, REPRESENTATIONS AND WARRANT~ES Co'~/eman¢s, ;'eC;~'.esan'~.~c,~s ~¢~ :J~arranzies. The .7ecJpient covenants, represents and warrants to the Ministry that: (a) it is conducting its business in compliance with all applicable federal, provincial and municipal laws, and all rules, regulations, by-laws, notices, orders and approvals; (b) it has authority and any necessary approval to enter into this Agreement and to carry out its terms and, where applicable, has passed any required by-law or band council resolution; (c) it has or will apply for all permits, approvals, and licenses which are required in order to carry out the Project including, but not limited to, any approvals lawfully required under the Planning Act (Ontario), the Building Code Act (Ontario), the Highway Traffic Act (Ontario), the Public Transportation and Highway Improvement Act (Ontario), the Bridges Act (Ontario) and the Environmental Laws; (d) it validly exists as a legal entity with full power to perform and observe all the terms and conditions of this Agreement; (e) it is now and will continue to be compliant with all Environmental Laws; (f) it owns or has a long-term lease (inclusive of any renewals) that expires no earlier than March 31, 2027 for the lands on which the Asset is or will be located and that it will provide evidence of same in the prescribed form set out in Schedule "F" (Form of Certificate of Title) hereto (in the case of ownership or Reserve Lands) or Schedule "G" (Form of Legal Opinion) hereto (in the case of a long-term lease) to the satisfaction of the Ministry, in its sole discretion, on or before the date of the first scheduled payment of Financial Assistance pursuant to this Agreement; (g) no construction, including, without limitation, site excavation, with respect to the Project occurred prior to April 1, 2002; (h) provided the Recipient is not a Municipality or a Crown Agency, it (i) is not a non-resident of Canada within the meaning of the Income Tax Act (Canada); (ii) is either a corporation, a partnership or a sole proprietorship validly in existence; and 67. 68. (iii) is registered and qualified to do business wherever necessary to carry out the Project: if ;he ;S;eciis~en'~ is a !Vlunic;saii~v sr a ,¢,"-n~wn' AgencT, it sas ;.ne' ;equisite legislative authority to carry out the Project; (j) it has the experience, financial means and ability to carry out the Project; (k) it will provide or arrange for funds totaling at least as much as the Mandatory Other Funds to be used for the Project; other than the Financial Assistance being provided pursuant to this Agreement, the Recipient has not and will not use any capital funding received from Her Majesty the Queen in right of Ontario or a Crown Agency towards any aspect of the Project; and (m) all information provided by the Recipient for and during the Program remains true, correct and complete in every respect except as set out to the contrary in this Agreement. Without limitation, Project, Budget, Sub-project Milestones, Other Funds, Total Other Funds and Alternative Funds are as set out in this Agreement and not as set out in the application material. Representations and warranties true condition precedent for payment. Upon request, the Recipient shall provide the Ministry with proof of the matters referred to in this Article XIV (Covenants, Representations and Warranties). It is a condition precedent to any payment under this Agreement that the representations and warranties under this Article XIV (Covenants, Representations and Warranties) are true at the time of payment and that the Recipient is not in default of compliance with any terms of this Agreement. Where this is not the case, the Ministry may, in its sole discretion, Adjust the Financial Assistance. ARTICLE XV DEFAULT, ENFORCEMENT AND TERMINATION Event of Default. Each and every one of the following events is an "Event of Default": (a) if in the opinion of the Ministry, the Recipient fails to conform or comply with any term or covenant contained in this Agreement to be performed or complied with by the Recipient; (b) if in the opinion of the Ministry any representation or warranty made by the Recipient in this Agreement or any certificate delivered to the Ministry pursuant hereto shall be materially untrue in any respect; 26 69. (c) if an order is made or an effective resolution passed for the winding up, or liquidation or dissolution of the Recipient or the Recipient is otherwise dissolved or ceases 'to ~rr,/~n its operation; (d) if the Recipient ceases to have the status of a Municipality or band of indians under the indian ,Act (Canaaa); (e) if the Recipient uses any of the Financial Assistance for a purpose not authorized by this Agreement without the prior written consent of the Ministry; (f) if the Recipient admits in writing its inability to pay its debts generally as they become due, voluntarily suspends transactions of its usual business, becomes insolvent, bankrupt, makes an assignment for the benefit of its creditors, or a receiver or manager, court appointed or otherwise, is appointed for its assets or if the Recipient takes the benefit of any statute from time to time in force relating to bankrupt or insolvent debtors; (g) if in the opinion of the Ministry a material adverse change occurs such that the viability of the Recipient as a going concern is threatened; (h) if in the opinion of the Ministry the Recipient ceases to operate; (i) if in the opinion of the Ministry the Recipient has failed to proceed diligently with the Project or abandons the Project in whole or in part, or the Recipient is otherwise in default in carrying out any of the terms, conditions or obligations of this Agreement, except where such failure is due to causes which, in the opinion of the Ministry are beyond the control of the Recipient; (J) if the Recipient has transferred all. or part of the Asset, contrary to section 54 (Transfer of ownership) of this Schedule "A" (General Terms and Conditions); (k) if the Recipient has submitted false or misleading information to the Ministry; or the Recipient and/or any of its Consultants and/or any of their respective advisors, partners, directors, officers, employees, agents and volunteers has breached the requirements of Article XII (Conflict of Interest and Confidentiality). Waiver. The Ministry may, at any time, waive any Event of Default which may have occurred provided that no such waiver shall extend to, or be taken in any manner whatsoever to affect, any subsequent Event of Default or the right to remedies resulting therefrom, and that no such waiver shall be, or shall be deemed 2? 70. 71. 72. to constitute, a waiver of such Event of Default unless such waiver is in writing from the Ministry. Remedies on :¢e~:auJt. ',totvviths~anaing any o'[her ,dghts which ~.he Ministry may have under this Agreement, if an Event of Default has occurred, the Ministry shall have the 'following remedies provided only that in the case of an Event of Default which, in the opinion of the Ministry in its sole discretion, is curable, the Ministry has first given written notice of the Event of Default to the Recipient and the Recipient has failed to correct the Event of Default within ten (10) Business Days or such longer period of time as the Ministry may consent to in writing: (a) The Ministry shall have no further obligation to provide any Financial Assistance for the Project; (b) The Ministry may, at its option, terminate this Agreement and may, in its sole discretion, Adjust the Financial Assistance. The total amount of Financial Assistance shall be immediately due and payable by the Recipient and bear interest at the rate established under section 10 of the Financial Administration Act (Ontario), as amended; and (c) The Ministry may avail itself of any of its legal remedies which it may deem appropriate. Additional remedies. In addition to the remedies described in section 70 (Remedies on default) of this Schedule "A" (General Terms and Conditions), the Ministry may commence such legal action or proceedings as it, in its sole discretion, may deem expedient, without any additional notice under this Agreement. The rights and remedies of the Ministry hereunder are cumulative and in addition to, and not in substitution for, all other rights or remedies otherwise available to the Ministry. Termination without cause. Notwithstanding anything else contained herein, the Ministry reserves the right to terminate this Agreement without cause upon such conditions as the Ministry may require, with a minimum of seven (7) days written notice to the Recipient. If the Ministry terminates this Agreement prior to the Expiration Date, the Ministry, subject to all of the Ministry's rights under this Agreement, including, without limitation, the Ministry's right to Adjust the Financial Assistance, shall only be responsible for the payment of Financial Assistance on the portion of the Project completed and Eligible Costs already incurred and paid at the time of such termination provided that the Recipient provides a report to the Ministry that meets the requirements of a Progress Report. Such report must be received by the Ministry within three (3) months of notice of termination being given to the Recipient pursuant to this section 72 (Termination without cause) of this Schedule "A" (General Terms and Conditions). 28 74. 75. 76. ART]CL:E XV~ NC)TIC~ Notice. Any demand, notice or communication to be made or given hereunder shall be in writing and may be made or given by personal delivery or mailed by first class registered mail, postage prepaid or by transmittal by facsimile, telecopy or other electronic means of communication addressed to the respective parties and at the addresses set out in Schedule "E" (Additional Provisions) attached hereto or to such other person, address or facsimile number or telecopy number as either party may from time to time provide the other in accordance with this section 73 (Notice) of this Schedule "A" (General Terms and Conditions) and Schedule "E" (Additional Provisions). Any demand, notice or communication made or given by personal delivery shall be conclusively deemed to have been given on the day of actual delivery thereof. Any demand, notice or communication made or given by facsimile or other electronic means of communication, if made or given at a time when it would be received by the Recipient during its normal business hours on a Business Day, shall be deemed to be received at the time it is sent; otherwise, such electronic communication shall be deemed to be received on the first (1st) Business Day following the transmittal thereof. Any demand, notice or communication mailed by registered mail shall be deemed to have been received on the third ($rd) Business Day following the day on which it was mailed. Representatives. The individuals identified pursuant to section 73 (Notice) of this Schedule "A" (General Terms and Conditions) will, in the first instance, act as the Ministry's or the Recipient's, as the case may be, representative for the purpose of implementing this Agreement. ARTICLE XVll IVIISCELLANEOUS Terms binding. The Recipient shall take reasonable measures to ensure that its officers, directors, partners, employees, agents and Consultants shall be bound to observe all the terms and conditions of this Agreement, including, but not limited to all covenants, representations and warranties set out herein. The Recipient shall include in any contract terms and conditions similar to and not less favourable to the Ministry than the terms and conditions of this Agreement to the extent that they are applicable to the work subcontracted, including but not limited to the requirements of section 38 (Information) of this Schedule "A" (General Terms and Conditions). Time of the essence. In the performance and observance of the terms and conditions of this Agreement, time is of the essence and no extension or variation of this Agreement shall operate as a waiver of this provision. 77. 78. 79. 80. 81. 82. 83. 84. 85. Successors and assigns. This Agreement shall enure to the benefit of and be binding ,..,~on ~.he ~arties hereto and their respective heirs, executors. adrn, inistra~ors, ;successors ~nd permi'~ted assigns. Severabilit.v. The validity or enforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions hereof and such invalid or unenforceable provisions shall be deemed to be severable. No waiver. The failure by the Ministry to insist in one or more instances on performance by the Recipient of any of the terms or conditions of this Agreement shall not be construed as a waiver of the Ministry's right to require further performance of any such terms or conditions, and the obligations of the Recipient with respect to such performance shall continue in full force and effect. Division of Agreement. The division of this Agreement into schedules, articles, sections, clauses, paragraphs and the insertion of headings are for the convenience of reference only and shall not affect the construction or interpretation of this Agreement. Governing law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable in Ontario. Survival. Articles IV (Financial Assistance), VI (Records and Audit), VII (Reporting Requirements), VIII (Overpayment), X (Indemnity), XI (Transfer of Asset), Xll (Conflict of Interest and Confidentiality), XlII (Communications and Recognition), XlV (Covenants, Representations and Warranties), XV (Default, Enforcement and Termination) and XVII (Miscellaneous) and section 34 (Long- term capital management plan) of this Schedule "A" (General Terms and Conditions) shall survive the expiration or early termination of this Agreement until March 31,2027. No assignment. This Agreement shall not be assigned by the Recipient. No amendment. This Agreement shall not be varied, except by a document in writing, dated and signed on behalf of the Ministry and the Recipient. Interest. The Ministry reserves the right to demand interest on any repayment of Financial Assistance owing by the Recipient under the terms of this Agreement at the rate established under section 10 of the FinancialAdministration Act, as amended. The Recipient shall pay the amount of interest owing upon receipt of a written demand and within the period specified by the Ministry. 3O 86. Ministry and Recipient independent. Nothing in this Agreement shall be deemed to constitute the Recipient an employee, servant, agent, partner of or in joint venture with the Ministry %r any ~urpose whatsoever 87, Recipient cannot represent the Ministry. The provision of Financial Assistance to the Recipient pursuant to this Agreement is for the sole purpose of, and is limited to, carrying out the Project. The Recipient warrants and agrees that under no circumstances shall it enter into any contract or commitment in the name of or on behalf of the Ministry and the Recipient acknowledges that it is not by the terms of this Agreement or otherwise, granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of or in the name of the Ministry or to bind the Ministry in any manner whatsoever other than as specifically provided in this Agreement. 88. Consultants. The Ministry acknowledges that, in connection with carrying out the Project, the Recipient may engage one or more Consultants. The Ministry acknowledges and agrees that the Recipient shall have the sole authority and responsibility for such employees, agents or Consultants, including their hiring and termination. The Recipient acknowledges and agrees that the Recipient shall be responsible for all acts and actions of the Recipient's employees, agents and Consultants and that all such acts and actions shall be treated as actions of the Recipient for the purposes of this Agreement. 89. Cooperation. The Ministry and the Recipient agree to cooperate with one another and will be frank, candid and timely when dealing with one another and will endeavor to facilitate the implementation of this Agreement. 90. Joint and several. Where the Recipient is made up of two or more entities, each such entity shall be jointly and severally liable (each completely and individually liable) to the Ministry for the fulfillment of the obligations of the Recipient under this Agreement. - END OF GENERAL TERMS AND CONDITIONS - SCHEDULE "B" DESCRIPTION OF THE PROJECT TO AN AGREEMENT RELATED TO THE FUNDING OF PROVINCIAL TRANSIT EXPANSION ,~ETWEEN THE ~IN~STEP, OF TRANSP©RAT]ON FOR THE ,,':R©V~NCE ,3F ONTARIO .A,~D THE ~Name ,,.of Recipiem:~ [Note: lVlTO is currently addressing the issue of date changes (if required), and will advise when a decision is made.] [Note: The Recipient must follow the following template when providing related information.] 1. Project. [Note: Recipient to provide the name and brief explanation of the Project.] Overall Project management. [Note: Recipient to provide the titles, roles and responsibilities of the persons responsible for the overall project management.] 3. Table B1 summary of costs related to the Project. [Note: Recipient is to complete the following table.] Table BI Sub- !Total Ineligible I Eiigible l~rovincial Recipient project Sub- Costs Costs t Share of & Other !component'project i / Eligible Funds Costs I ! I Costs share of I I ([?]%) Total I I Project Costs ([?]%) Sub- project 1 Sub- project 2 Sub- project [?] total 32 Table B2 Project cash flow summary. [Note: Recipient to provide a summary of 'the costs 'for ~he provincial fiscal year, i.e. from April I to Nlarch 3!.] The total annual cash flow costs estimates associated with the Project are as follows: Table B2 11 Project costs t total contribution ~ 2002~2003 I 2003~2004 200412005 provincial Recipient & others total I SCHEDULE "B" - ATTACHMENT 1 ~Note: Recipient 'to insert the Sub-project title.] SUB-PROJECT TO AN AGREEMENT RELATED TO THE FUNDING OF PROVINCIAL TRANSIT EXPANSION BETWEEN THE MINISTER OF TRANSPORATiON FOR THE PROVINCE OF ONTARIO AND THE [Name of Recipient] [Note: The Recipient must follow the following template for each Sub-project.] ARTICLE i DESCRIPTION Objectives. [Note: Recipient must set out the objectives of the Sub-project which must relate to the objectives set out under paragraph 41(h) (Final Report) of Schedule "A" (General Terms and Conditions).] Technical quality and innovative features. [Note: The Recipient must describe the quality and innovative features of the Sub-project.] ARTICLE II MANAGEMENT Sub-project management. [Note: The Recipient must provide details of the Sub-project management, identify roles and responsibilities of proposed partners and provide confirmation of support.] 4. Financial sustainability. [Note: The Recipient must demonstrate long-term sustainability and financial sufficiency.] 5. Table B3 summary of costs related to the Sub-project components. Table B3 major Sub- Sub- Ineligible ! Eligible Provincial Recipient project project Costs Costs share of & Other component costs Eligible Funds Costs ([Up share of to Total 33.33%)] Sub- project Costs Component 1 [Note: Recipient to I I , 34 replace the reference ~o "Compor~en~: ~" by the component name.l Component 2 [Note: Recipient to replace the reference to "Component 2" by the component name.] Component [?] [Note: Recipient to replace the reference to "Component [?]" by the component name.] total ARTICLE III SUB-PROJECT MILESTONES Schedule. [Note: Recipient must describe the Sub-project Schedule indicating Sub-project Milestones, required approvals, estimated time frames for construction and/or capital asset delivery and proposed performance measures, and estimated costs.] Project start date: Project completion date: date prior to March 31, 2005] [Note: Recipient must indicate a Table Sub-project approvai(s) ~.stimated time performance Sub-project Milestones frame measures costs ~ ($) Sub-project Milestone 1: [Note: Insert a brief description of the milestone.] Sub-project Milestone 2: [Note: Insert a brief description of the milestone.] Sub-project Milestone 3: [Note: Insert a brief description of the milestone.] Sub-project Milestone 4: i [Note: Insert a brief description of the milestone.] [Note: add any necessary row for any additional Sub-project Milestones.] Total Sub-project Costs (1) This amount must be reported in section 5 (Table B3 summary of costs related to this Sub-project components) of Schedule "B" - Attachment 1 for the appropriate Sub- project) under the total row in the Sub-project costs column. Note: It must be noted that the projected expenditures and estimated time frames as forecasted under the heading "Sub-project Milestones" are preliminary and based upon best available knowledge as of the date this Agreement is made. Although these projected expenditures and estimated time frames are subject to minor changes, they will be managed over the life of the Sub-project so as to not exceed the estimated Total Sub-project Costs of or the associated Provincial contribution of $ 36 ARTICLE IV CASK FLOW 7. Table B5 Sub-projec~ cash flow summary. The annuat cash flow costs ,,sdmates ~ssociated with the Sub-project are as follows: Table B5 Sub-project costs total contribution 2002/2003 2003/2004 2004/2005 provincial Recipient & others total 37 SCHEDULE "C" FINANCIAL ASSISTANCE TO AN AGREEMENT RELATED TO THE FUNDING OF PROVINCIAL TRANSIT EX:PANS~ON BETWEEN THE '~llNISTER OF TRANSPORAT]ON FOR THE PROVINCE OF ONTARIO AND THE [Name of Recipient] Total Eligible Costs: $ Provincial Share: 33.33%. Maximum Financial Assistance: $ 90% of Maximum Financial Assistance: $ It is a condition precedent to any payment of Financial Assistance under this Agreement that the Recipient has provided evidence satisfactory to the Ministry, in the Ministry's sole discretion, that any permits, approvals, and licenses required under section 66(c) (Covenants, representations and warranties) of Schedule "A" (General Terms and Conditions) have been obtained, the Ministry has received the certificate of insurance as required by section 49 (Certificate of Insurance) of Schedule "A" (General Terms and Conditions) and the Ministry has received the certificate or opinion that is required pursuant to section 66(f) (Covenants, representations and warranties) of Schedule "A" (General Terms and Conditions). Subject to the provisions of this Agreement, and in particular but without limitation section 19 (Maximum Financial Assistance) of Schedule "A"(General Terms and Conditions) and the condition precedent set out above having been fulfilled by the Recipient, the Ministry may provide the Financial Assistance to the Recipient as follows: (a) Following receipt and approval by the Ministry of the Recipient's first (1st) Progress Report detailing the progress and status of the Project and substantiating that not less than thirty percent (30%) of the Project has been completed, the Ministry will provide Financial Assistance in the amount equal to the Provincial Share of what the Ministry deems Eligible Costs identified in the Progress Report. Such report must contain the information required in a Progress Report as set out in section 40 (Progress Reports) of Schedule "A" (General Terms and Conditions). (b) Following receipt and approval by the Ministry of the Recipient's second (2®) Progress Report detailing the progress and status of the Project and substantiating that not less than sixty percent (60%) of the Project has been completed, the Ministry will provide Financial Assistance in the amount equal to the Provincial Share of what the Ministry deems Eligible Costs identified in the Progress Report. 38 Such report must contain the information required in a Progress Report as set out in section 40 (Progress Reports) of Schedule "A" (General Terms and Conditions). Following receipt and approval by the Ministry of'the Recipient's third (3rd) Progress Report detailing the progress and status of 'the Project and substantiating that not. iess than ninety percent (90%) of the ?roject has been completed, the Ministry will provide Financial Assistance in the amount equal to the Provincial Share of what the Ministry deems Eligible Costs identified in the Progress Report. Such report must contain the information required in a Progress Report as set out in section 40 (Progress Reports) of Schedule "A" (General Terms and Conditions). (d) In no event will the total of the Financial Assistance provided pursuant to (a), (b) and (c) above exceed 90% of Maximum Financial Assistance. (e) Following receipt and approval by the Ministry of the Recipient's Final Report detailing the progress and status of the Project and substantiating that the Project has been Substantially Performed, the Ministry will provide Financial Assistance in the amount equal to the Provincial Share of what the Ministry deems Eligible Costs identified in the Final Report. Such report must contain the information required in the Final Report as set out in section 41 (Final Report) of Schedule "A" (General Terms and Conditions). Upon written request from the Recipient, the Ministry may, in writing and at it's sole discretion, allow the Recipient to use the Financial Assistance provided towards specific Sub-project costs for other Sub-project costs, as long as the Maximum Financial Assistance is not exceeded. SCHEDULE "D" OTHER FUNDING TO AN AGREEMENT RELATED TO THE FUNDING OF PROVINCIAL TRANSIT EXPANSION BETWEEN THE ~IINISTER OF TRANSPORAT~ON FOP, THE PROV~NCE OF ONTARIO AND THE [Name of F~ecipient] The Other Funds are as follows: source amount amount total committed anticipated ($) ($) ($) Total Other Funds -+ The Recipient has arranged the following alternative sources of funding (the "Alternative Funds") as a precaution with respect to the Other Funds, which are anticipated: source amount(s) 4O SCHEDULE "D" OTHER FUNDING TO AN AGREEMENT RELATED TO THE FUNDING OF PROVINCIAL TRANSIT EXPANS~©N HETWEEN THE MINISTER OF TRANSPORAT]ON FOR THE PROVINCE OF ONTARIO AND THE [Name ,of Recipient] The Other Funds are as follows: source amoUnt amount total committed anticiPated ($) ($) (S) Total Other FUnds-+ The Recipient has arranged the following alternative sources of funding (the "Alternative Funds") as a precaution with respect to the Other Funds, which are anticipated: source amount 40 SCHEDULE "E" ADDITIONAL PROVISIONS TO AN AGREEMENT RELATED TO THE FUNDING OF PROVINCIAL TRANSIT F_.X:PANSION BETWEEN THE MINISTER OF TRANSPORAT]ON FOR. THE PROVINCE OF ONTARIO AND THE [Name of Recipient] The Ministry and the Recipient agree to the following additional provisions: Further to section 73 (Notice) of Schedule "A' (General Terms and Conditions) hereto, notice shall be given at the following addresses, unless otherwise agreed to by the Urban and Rural Infrastructure Policy Branch Director for the Ministry and the Recipient in writing: (a) If to the Ministry: Ministry of Transportation Urban and Rural Infrastructure Policy Branch 2nd Floor, Building "B" 1201 Wilson Avenue Toronto, Ontario M3M 1J8 Attention' Director Fax:416-235-3573 (b) If to the Recipient: · · Fax: · Attention: · Other provisions: 4] SCHEDULE "F" FORM OF CERTIFICATE OF TITLE TO AN AGREEMENT RELATED TO THE FUNDING OF PROVINCIAL TRANSIT EXPANS~©N E~ETWEEN THE MINISTER OF TRANSP©RAT]ON FOR THE PROVINCE OF ONTARIO AND THE [Name of Recipient] [Note: basis.] RE: AND RE: AND RE: TO: Whether this schedule is required will be assessed on a case-by-case SOLICITOR'S CERTIFICATE OF TITLE PROVINCIAL TRANSIT EXPANSION FUNDING [Name of Recipient as on Page 1 of the Agreement] (the "Recipient") application for Financial Assistance under the PROVINCIAL TRANSIT EXPANSION FUNDING Recipient's Title to [short legal description of lands including P.I.N. if applicable and municipal address] (the "Property") Ministry of Transportation, Urban and Rural Infrastructure Policy Branch This is to certify to the Ministry in connection with the Recipient's application for Financial Assistance for improvements to the Property under the provincial transit expansion funding that, as of the date of this Certificate of Title: The Recipient is the registered owner in fee simple with good and marketable title to the Property by transfer/deed registered in the Land Registry Office for the Land Titles/Land Registry Division of (No. ) on as Instrument No. , a true copy of which [or in the case of property in Land Titles] a true copy of the Property's RI.N. Parcel is attached. There are no mortgages, liens, easements, agreements or any other restrictions or encumbrances that prevent the construction, occupation and use of the improvements to the Property. There are no outstanding arrears of property taxes, local improvement charges or any special assessments or rates against the Property. 4. I am a member in good standing of the Law Society of Upper Canada. DATED at , this day of ,200 Name of solicitor: Firm: Mailing Address: 42 SCHEDULE "G" FORM OF LEGAL OPINION TO AN AGREEMENT RELATED TO THE FUNDING OF PROVINCIAL TRANSIT EX:PANSION BETWEEN THE MINISTER OF TRANSPORAT]ON FOR THE PROVINCE OF ONTARIC AND THE [Name of Recilaient] [Note: Whether this schedule is required will be assessed on a case-by-case basis.] RE: AND RE: AND RE: TO: PROVINCIAL TRANSIT EXPANSION FUNDING [Name of Recipient as on Page 1 of the Agreement] (the "Recipient") application for Financial Assistance under the provincial transit expansion funding for improvements to the Property (as defined below) Recipient's lease of [short legal description of lands including P.I.N. if applicable and municipal address] (the "Property") Transportation, Urban and Rural Infrastructure Policy Branch [Note: In satisfaction of section 66(f) (Covenants, representations and warranties) of Schedule "A" (General Terms and Conditions) (in the case of a lease), your solicitor's legal opinion should be addressed as set out above and should contain the following statement:] We are of the opinion that as of the date hereof, the Recipient, as tenant, has entered into a binding and enforceable lease (the "Lease") dated for the Property with , as landlord. The term of the Lease (inclusive of any renewals) expires no earlier than March 31, 2027, and there is no term or condition in the Lease or any other agreement that will prevent the Recipient from constructing, occupying and using the improvements to the Property. DATED at , this day of ,200 Name of solicitor: Firm: Mailing Address: 4.3 SCHEDULE "H" COMMUNICATIONS REQUIREMENTS TO AN AGREEMENT RELATED TO THE FUNDING OF PROVINCIAL TRANSIT EXPANSION E~ETWEEN THE NIlNISTER OF TRANSPORATION FOR THE PROVINCE OF ONTARIO AND THE [Name of Recipient] Purpose of Schedule This Schedule describes the Recipient's responsibilities and financial obligations involved in producing, installing and maintaining signs and plaques as well as in arranging announcements and ceremonies for the Project. 2. General Principles The Recipient will work with the Ministry's officials and other partners to undertake communication activities ensuring equal recognition of all parties making a significant financial contribution to the Project. All ceremonies, events, signs and plaques will follow these Communications Requirements and any other requirements that may be specified by the Ministry. All parties making a significant financial contribution to the Project shall receive equal recognition and prominence when Iogos, symbols, flags and other types of identification are incorporated into announcements, ceremonies, signs and plaques unless the Ministry provides otherwise. All announcements, events and ceremonies will be organized jointly with equal participation from all parties making a significant financial contribution to the Project. Both official languages will be used for public information, signs and plaques in accordance with the French language services standards for Ontario. 3. Signs and Plaques The Recipient must comply with the Ontario style guide when designing all signs and plaques as set out below: · Ontario's style guide and digital templates in a variety of formats are available from Ontario's password-protected Partner Centre on its Web site at www. pir.,qov.on.ca. For Passwords, please complete the Join Form on the main page of the Partner Centre. For more information, please contact the Ontario Standards Advisor by phone at 416-325-0424, fax at 416-325-8440 or e-mail at Standards.Advisor .¢.pir.,qov.on.ca. 44 The Recipient will ensure that proofs of all Ontario's capital project signs and plaques are reviewed by the Ministry before installation. 4, Responsibifities The Recipient is responsible for erecting Ontario capital project signs indicating all Ministry Financial Assistance, municipal contribution and other parties making a significant contribution toward the Project at all sites, facilities, etc. where the Financial Assistance is being used. The Recipient shall erect signs and install plaques as directed by this Schedule "H" (Communications Requirements). The relevant standards and procedures are outlined in the following paragraphs. External Project Signs (Temporary) External Project Signs (at least 120cm high by 240cm wide /four feet high by eight feet wide) are required where the Maximum Financial Assistance exceeds fifty thousand dollar ($50,000) the Project is underway and where the duration of the Project is longer than three (3) months. Larger signs (240cm high by 480cm / eight feet high by sixteen feet wide) are required where the Maximum Financial Assistance exceeds two million five hundred thousand dollar ($2,500,000) where the Project is underway and where the duration of the Project is longer than one year. External Project signs shall follow the approved design and guidelines outlined in the Ontario style guide. These guidelines provide specifications such as the required positioning of government Iogos and those of its public and/or private- sector partners, as appropriate. Both official languages will be used for public information, signs and plaques when required by Ontario's French language services standards for Ontario projects. The Recipient will submit proofs via e-mail of the external project signs to the Ontario Standards Advisor for approval. The Recipient will oversee the manufacture of the sign and ensure that the selected location of the sign does not restrict accessibility, pose any hazard or interfere with facilities and services (e.g. electrical systems, drainage, and the like). The Recipient shall ensure that the Project signs are erected in prominent locations at the Project site as soon as possible after the execution of this Agreement and no later than thirty (30) days after the start of construction. Erected signs should be maintained for up to sixty (60) days following Project completion. The Recipient will arrange for sign removal and re-cycling following the 60-day period. Signs should be freestanding, securely assembled and erected, away from other distracting signs. No other sign, including those of design and/or engineering firms and/or contractors involved with the Project, should be attached to the Project sign. The Recipient is responsible for sending to the Ontario Standards Advisor, within thirty (30) days of receipt of the Ministry's approval of design proofs, a photograph (digital or othen~vise) which portrays the erected sign in relation to the Project. Where the Maximum Financial Assistance does not exceed fifty thousand dollar ($50,000), the Recipient may, at its option, install a sign (following the requirements of this Schedule "H" (Communications Requirements)) and the costs associated with so doing will be an Eligible Cost in accordance with this Schedule "H" (Communications Requirements). Plaques (Permanent) Upon completion of a Project where the Maximum Financial Assistance exceeds five hundred thousand dollar ($500,000), the Recipient will install a permanent plaque. Permanent plaques may follow the design outlined in the Ontario style guide or use a style suited to the building, provided all governments and partner Iogos are included. · Costs for plaques shall be part of the Project's Eligible Costs in accordance with this Schedule "H" (Communications Requirements). · The Recipient will submit proofs of the plaques to the Ministry for approval. o Both official languages will be used for public information, signs and plaques when required by Ontario's French language services standards for Ontario projects. · Upon completion of a Project where the Maximum Financial Assistance does not exceed five hundred thousand dollar ($500,000), the Recipient may, at its option, install a permanent plaque (following the requirements of this Schedule "H" (Communications Requirements)) and the costs associated with so doing will be an Eligible Cost in accordance with this Schedule "H" (Communications Requirements). 7. Visual Identity $ignage The Recipient will install and maintain the exterior and interior visual identity signage as supplied by the Ministry on Transit Vehicles that received provincial financial support through the Program. A sample of the visual identity signage has been attached as information (see Attachment 1 to this Schedule "H" (Communications Requirements)). External visual identity signage must be located immediately to the left of the front passenger entrance doors of the vehicle. Internal visual identity signage should be 46 placed on an interior wall in a location and height that will be convenient for passengers to read. 8 Eiigibie Costs External Project Signs (Temporary) Small sign: 120 cm high by 240 cm wide/4 feet high by 8 feet wide production- $1,250 installation- $1,000 total $2,250 Large sign: 240 cm high by 480 cm wide/8 feet high by 16 feet wide production - $2,250 installation - $2,000 total $4,250 Plaques (Permanent) 71 cm high x 45.7 cm wide/28 inches high by 18 inches wide Cast bronze $2,500 for one colour Cast aluminum $2,000 for up to three colours Engraved acrylic $1,500 for up to three colours 9. Announcements and Ceremonies All governments must be equally represented at events. When asked by elected representatives or designated officials from the Ministry the Recipient will coordinate a mutually agreeable venue, date and time for the event in light of the availability of the all government participants from all levels of government. The Recipient may invite other elected officials and members of council. The Recipient should also invite local interested parties, such as contractors, architects, labour groups, and community leaders. After the participants, date and location have been determined, the Recipient should send out invitations to all guests. 4? When appropriate, the Recipient should invite the general public by posting notices in public areas, such as post office and libraries or by placing public service announcements in the local media. All written communications (invitations, public service announcements, posters, and the like) must indicate that the Project ;eceived Financial Assistance from Ontario. The Recipient could arrange for light refreshments to be served after the event, for example coffee, tea, juice and donuts. The Recipient will have an opportunity to provide input into the agenda, media advisory, news release and the like, and will receive final copies in advance of the event. Depending on the size of the event site, a specially designed program backdrop, banner and/or lectern sign will be provided to the Recipient. Provincial and municipal flags should also be on display at all events. 10. Responsibilities The Recipient will: make all local arrangements for venue (e.g., podium, flags as appropriate, seating for speakers, shovels for ground-breaking ceremonies or ribbon for opening ceremonies and the like) if required; produce invitation and guest list and distribute invitations; display Project material (could include information on other provincial transit expansion funding projects carried out by the Recipient); choose a master of ceremonies, if required; arrange for refreshments if desired; and, arrange for a public address system if appropriate. 48 1 !. Eligible Costs The Ministry will fund a portion of ~ recommended event (sod turning, plaque unveiling, ribbon-cutting, official opening) in accordance with this Agreement. In order for a cost to be considered an Eligible Cost for the purposes of this Schedule "H" (Communications Requirements), the Ministry must pre-approve the budget related to the event. No more than seven hundred fifty dollars ($750) of Eligible Costs will be considered by the Ministry. Only costs associated with events recommended by the Ministry will be considered Eligible Costs. The Project may be of such regional or provincial significance that it warrants a major event (such determination to be made by the Ministry, in its sole discretion). If this is the case, specific Project budget above seven hundred fifty dollars ($750) in Eligible Costs may be permitted with the prior written approval of the Ministry. For the purposes of announcements and ceremonies, Eligible Costs include the following: Printing and mailing invitations; Refreshments*; Draping for plaque unveiling; Project material for display and/or media kit; Temporary signage; and Rentals such as: flagpoles; · stage; · chairs; ° podium; and ° PA system. *Only light refreshments such as coffee, tea, donuts, muffins will be considered Eligible Costs. The cost of certain items such as alcoholic beverages, china, tents, waiters, guest mileage or transportation, wine glasses, lamps, tea wagons, plants, photographers and gifts are not Eligible Costs. SCHEDULE "H" - ATTACHMENT 1 VISUAL IDENTITY $1GNAGE TO AN AGREEMENT RELATED TO THE FUNDING OF PROVINCIAL TRANSIT EXPANSION ~ETWEEN THE ~IlN]STER OF TRANSP©RAT]©N FOR THE PROVINCE OF ONTARIO AND THE [Name of Recipient] The following are the visual identity signage that shall be installed and maintained by the Recipient as per section 7 of Schedule "H" (Communications requirements). Exterior Recognition Stickers - approximate size 3"X 8" Ontario Interior Recognition Stickers - approximate size 4"X 12" Ontar'o 5O SCHEDULE "i" PERFORMANCE MEASUREMENT TO AN AGREEMENT RELATED TO THE FUNDING OF PROVINCIAL TRANSIT EXPANSION ~3ETWEEN THE ~/IIN~STER OF TRANSPORAT]©N FOR THE PROVINCE OF ONTARIO AND THE [Name of Recipient] Definitions. For the purposes of this Schedule 'T', the Ministry and the Recipient agree to the following definitions: "Performance Measure" means an attribute of the Project, described in Table 1.3.1 of section 3 to this Schedule 'T' (Performance Measurement), that must be measured to determine whether a corresponding Performance Target (as defined in this Schedule 'T' (Performance Measurement)is met. "Performance Indicator" means the quantification or qualification, described in Table 1.3.1 of section 3 to this Schedule 'T' (Performance Measurement), as applicable, of a Performance Measure. "Performance Target" means the specific quantitative or qualitative goal, described in Table 1.3.1 of section 3 to this Schedule 'T' (Performance Measurement), against which a Performance Indicator will be compared and which may be adjusted by the Minister from time to time to take into account unforeseen circumstances. Performance Indicators. As part of the information to be provided under the reporting requirements identified in section 44 (Subsequent report) of Schedule "A" (General Terms and Conditions), the Recipient shall collect the data required under Table 1.3.1 of section 3 to this Schedule 'T' (Performance Measurement) to determine and report on the Performance Indicator for each of the Performance Measures. Performance Measurement Components. The following table describes the performance measures, performance indicators and performance targets referred to in other sections of this Schedule "1" (Performance Measurement): Table 1.3.1: Performance Measurement Components Performance Performance Indicator Performance Target Measure [Note to draft: To [Note to draft: To be [Note to draft: To be determined on determined on a case-by- be determined on a a case-by-case case basis.] i case-by-case basis.] basis.] [Note to draft: To be determined on a case-by-case basis.] [Note to draft: To be determined on a case-by- case basis.] [Note to draft: 7o be determined on a case-by-case basis.] Performance measurement plan. The Recipient shall submit to the Ministry for approval a performance measurement plan describing the data the Recipient shall collect and the frequency of such collection to determine and report on the Performance Indicator for each of the Performance Measures. Sufficiency of data under the plan. The performance measurement plan provided by the Recipient under Section 3 of this Schedule "1' (Performance Measurement) shall provide sufficient data and other information regarding the Performance Indicator for each Performance Measure to allow the Recipient and the Ministry to determine if the corresponding Performance Target has been met. Additional information. From time to time, at the request of the Ministry, the Recipient shall provide any other information respecting the Performance Measures, Performance Indicators and Performance Targets as the Ministry may require. Deduction or set-off from financial assistance. If the Performance Targets are not achieved, in the opinion of the Ministry, the Ministry may, at its sole discretion and in accordance with Ministry policies, deduct.or set off 0 to 5% of the Financial Assistance from any other project(s) of the Recipient under the Program or any other provincial program's (either current or future), and such amount of financial assistance shall be deemed to be a debt to the Crown under the FinancialAdministrafion Act, R.S.O. 1990, c. F.12, as amended. 52