THE AGREEMENT effective as of [@MTCU_ETD_Agreement_Effective_Date@].
B E T W E E N:
HER MAJESTY THE QUEEN IN RIGHT OF
ONTARIO as represented by the Minister
of Training, Colleges and Universities
(the “Ministry”)
- and [@Supplier Name@]
(the “Recipient”)
Background:
This Agreement defines the terms and conditions of Funds to be used by the Recipient
to carry out the Program.
Consideration:
In consideration of the mutual covenants and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
expressly acknowledged, the Parties agree as follows:
ARTICLE 1
INTERPRETATION AND DEFINITIONS
1.1
Interpretation. For the purposes of interpretation:
(a)
words in the singular include the plural and vice-versa;
(b)
words in one gender include all genders;
(c)
the background and the headings do not form part of the Agreement; they
are for reference only and shall not affect the interpretation of the
Agreement;
(d)
any reference to dollars or currency shall be to Canadian dollars and
currency; and
(e)
“include”, “includes” and “including” shall not denote an exhaustive list.
1.2
Definitions. In the Agreement, the following terms shall have the following
meanings:
“Agreement” means this agreement entered into between the Ministry and the
Recipient and includes all of the schedules listed in section 26.1, the Audit
Requirements and the Guidelines.
“Audit and Accountability Requirements” means the Literacy and Basic Skills
Audit and Accountability Requirements for Support Organizations. Despite
section 28.2 of the Agreement, these requirements may be amended from time
to time at the sole discretion of the Ministry and such amendment shall become
effective when the Ministry gives Notice to the Recipient. These requirements are
available on the LBS-IMS system as well as the Employment Ontario Partners’
Gateway at: http://www.tcu.gov.on.ca/eng/eopg/programs/training.html
“Budget” means the budget attached to the Agreement as Schedule “B”.
“Effective Date” means the date set out at the top of the Agreement.
“Event of Default” has the meaning ascribed to it in section 14.1.
“FIPPA” means the Freedom of Information and Protection of Privacy Act, R.S.O.
1990, c. F.31, as amended.
“Funding Year” means:
(a)
in the case of the first Funding Year, the period commencing on the
Effective Date and ending on the following March 31; and
(b)
in the case of Funding Years subsequent to the first Funding Year, the
period commencing on April 1 following the end of the previous Funding
Year and ending on the following March 31.
“Funds” means the money the Ministry provides to the Recipient pursuant to the
Agreement.
“Guidelines” means the Literacy and Basic Skills Program Guidelines. These
Guidelines are available on the Employment Ontario Partners’ Gateway at:
http://www.tcu.gov.on.ca/eng/eopg/programs/training.html. In the event of any
inconsistency between the Guidelines and any other provision in the Agreement,
the other provision in the Agreement shall prevail.
“Indemnified Parties” means her Majesty the Queen in right of Ontario, her
Ministers, agents, appointees and employees.
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“LBS” means Literacy and Basic Skills.
“Literacy and Basic Skills Information Management System” or “LBS-IMS”
means the password protected data base to be used by the Recipient for the
purpose of sharing data and information between the Ministry and the Recipient.
“MFIPPA” means the Municipal Freedom of Information and Protection of Privacy
Act, R.S.O. 1990, c. M.56, as amended.
“Maximum Funds” means the sum of $
[@MTCU_ETD_Total_Contract_Value@] will provide the Recipient under the
Agreement] in Funding Year 2011-2012 plus the total maximum budget for
Funding Year 2012-2013 determined in accordance with section 4.10.
“Notice” means any communication given or required to be given under the
Agreement.
“Parties” means the Ministry and the Recipient.
“Party” means either the Ministry or the Recipient.
“PIPEDA” means the Personal Information Protection and Electronic Documents
Act, S.C. 2000, c. 5, as amended.
“Program” means the Literacy and Basic Skills Program described in Schedule
“A”.
“Reports” means the reports described in Schedule “D”.
“Revised Schedule “B” means the Budget and Performance Commitments
attached to the Agreement as Schedule “B” that have been revised in
accordance with section 4.10.
“Wind Down Costs” means the Recipient’s reasonable costs to wind down the
Program.
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1
General. The Recipient represents, warrants and covenants that:
(a)
it is, and shall continue to be for the term of the Agreement, a validly
existing legal entity with full power to fulfill its obligations under the
Agreement;
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(b)
(c)
any information the Recipient provided to the Ministry in support of its
request for funds (including information relating to any eligibility
requirements) was true and complete at the time the Recipient provided it
and shall continue to be true and complete for the term of the Agreement;
(d)
any person involved in carrying out the Program has received training on
the relevant responsibilities of the Recipient set out in the Agreement; and
(e)
2.2
it has, and shall continue to have for the term of the Agreement, the
experience and expertise necessary to carry out the Program;
it shall take all reasonable actions to minimize and reduce the costs
related to the Program that may be incurred as a result of the termination
or expiry of the Agreement including negotiating all contracts related to the
Program such as employment contracts on terms that will enable the
Recipient to cancel them upon terms and conditions which will minimize
their cancellation costs in the event of termination or expiry of the
Agreement.
Execution of Agreement. The Recipient represents and warrants that:
(a)
(b)
2.3
it has the full power and authority to enter into the Agreement; and
it has taken all necessary actions to authorize the execution of the
Agreement including if the Recipient is a band as defined under the Indian
Act (Canada), it has passed a band resolution authorizing the Recipient to
enter into the Agreement with the Ministry, or if the Recipient is a
municipality it has passed a municipal by-law authorizing the Recipient to
enter into the Agreement with the Ministry.
Governance. The Recipient represents, warrants and covenants that it has, and
shall maintain for the period during which the Agreement is in effect, by-laws or
other legally necessary instruments to:
(a)
establish an expected code of conduct and ethical responsibilities
including a policy on protection of privacy in accordance with FIPPA,
MFIPPA or PIPEDA, if applicable, or that complies with the Canadian
Standards Association Code for the Protection of Personal Information
and that is publicly available and a policy on conflict of interest, at all
levels of the Recipient’s organization;
(b)
establish procedures to ensure the ongoing effective functioning of the
Recipient;
(c)
establish decision-making mechanisms;
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(d)
(e)
establish procedures to enable the successful completion of the Program;
(f)
establish procedures to enable the timely identification of risks to the
completion of the Program and strategies to address the identified risks;
(g)
establish procedures to enable the preparation and delivery of all Reports
required pursuant to Article 7; and
(h)
2.4
provide for the prudent and effective management of the Funds;
deal with such other matters as the Recipient considers necessary to
ensure that the Recipient carries out its obligations under the Agreement.
Supporting Documentation. Upon request, the Recipient shall provide the
Ministry with proof of the matters referred to in this Article 2.
ARTICLE 3
TERM OF THE AGREEMENT
3.1
Term. The term of the Agreement shall commence on the Effective Date and
shall expire on [@MTCU_ETD_Agreement_End_Date @] unless terminated
earlier pursuant to Article 12, Article 13 or Article 14.
ARTICLE 4
FUNDS AND CARRYING OUT THE PROGRAM
4.1
Funds Provided. The Ministry shall:
(a)
(b)
4.2
provide the Recipient up to the Maximum Funds for the purpose of
carrying out the Program;
provide the Funds to the Recipient in accordance with the payment
schedule attached to the Agreement as Schedule “C”.
Funds Deposited. The Funds shall be deposited into an account designated by
the Recipient as an account that resides at a Canadian financial institution and is
in the name of the Recipient:
(a)
(b)
4.3
by the Ministry where Funds are deposited by electronic transfer; or
by the Recipient where Funds are not deposited by electronic transfer.
Limitation on Payment of Funds. Despite section 4.1, the Ministry:
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(a)
shall not provide any Funds to the Recipient until the Recipient provides
the insurance certificate or other documents provided for in section 11.2;
(b)
is not obligated to provide instalments of Funds until it is satisfied with the
progress of the Program;
(c)
may adjust the amount of Funds it provides to the Recipient in any
Funding Year based upon the Ministry’s assessment of the information
provided by the Recipient pursuant to section 7.1; and
(d)
pursuant to the provisions of the Financial Administration Act (Ontario), if
the Ministry does not receive the necessary appropriation from the Ontario
Legislature for any payment the Ministry is obligated to make under the
Agreement, the Ministry shall not be obligated to make any payment, and:
(i)
(ii)
4.4
may reduce the amount of the Funds and, in consultation with the
Recipient, change the Program; or
the Ministry may terminate the Agreement pursuant to section 13.1.
Use of Funding and Program. The Recipient shall:
(a)
carry out the Program:
(i)
in accordance with the terms and conditions of the Agreement; and
(ii)
in compliance with all federal and provincial laws and regulations,
all municipal by-laws, and any other orders, rules and by-laws
related to any aspect of the Program;
(b)
(c)
4.5
use the Funds only for the purpose of carrying out the Program; and
spend the Funds only in accordance with the Budget.
No Changes. The Recipient shall:
(a)
(b)
4.6
not make any changes to the Program and/or the Budget without the prior
written consent of the Ministry; and
abide by the terms and conditions the Ministry may require pursuant to
any consent.
Interest Bearing Account. If the Ministry provides Funds to the Recipient prior
to the Recipient’s immediate need for the Funds, the Recipient shall place the
Funds in an interest bearing account in the name of the Recipient at a Canadian
financial institution.
Page 6 of 27
4.7
Interest. If the Recipient earns any interest on the Funds:
(a)
the Ministry may deduct an amount equal to the interest from any further
instalments of Funds; or
(b)
the Recipient shall pay an amount equal to the interest to the Ministry as
directed by the Ministry.
4.8
Maximum Funds. The Recipient acknowledges that the Funds available to it
pursuant to the Agreement shall not exceed the Maximum Funds.
4.9
Rebates, Credits and Refunds. The Recipient shall not use the Funds for any
costs, including taxes, for which it has received, will receive, or is eligible to
receive, a rebate, credit or refund.
4.10
Annual Budget and Performance Commitments. In each Funding Year
subsequent to the first Funding Year, the Ministry and the Recipient shall
establish a budget and set performance commitments for that Funding Year,
according to the following process.
(a) The Recipient shall submit a proposed business plan for a Funding Year in a
form and within the timelines to be specified by the Ministry.
(b) Upon receipt of the proposed business plan, the Ministry shall review the
proposed business plan and:
(i) promptly advise the Recipient of any concerns with the contents of
the proposed business plan and set a timeline for the submission of a
revised business plan; or
(ii) approve the proposed business plan.
(c) If and when the Ministry approves the proposed business plan for a Funding
Year, it shall provide the Recipient with a Revised Schedule “B” establishing a
budget and setting performance commitments for that Funding Year. The
Revised Schedule “B” shall be deemed to replace the previous Schedule “B”
and form part of the Agreement.
ARTICLE 5
ACQUISITION OF GOODS AND SERVICES AND DISPOSAL OF ASSETS
5.1
Acquisition of Goods and Services. If the Recipient acquires supplies,
equipment or services with the Funds, it shall do so through a fair and
transparent process that promotes the best value for money.
Page 7 of 27
5.2
Disposal. The Recipient shall not, without the Ministry’s prior written consent,
sell, lease or otherwise dispose of any asset purchased with the Funds or for
which Funds were provided, the cost of which exceeded $1,000 at the time of
purchase.
ARTICLE 6
CONFLICT OF INTEREST
6.1
No Conflict of Interest. The Recipient shall carry out the Program and use the
Funds without an actual, potential or perceived conflict of interest.
6.2
Conflict of Interest Includes. For the purposes of this Article, a conflict of
interest includes any circumstances where:
(a)
the Recipient; or
(b)
any person who has the capacity to influence the Recipient’s decisions,
has outside commitments, relationships or financial interests that could, or could
be seen to, interfere with the Recipient’s objective, unbiased and impartial
judgment relating to the Program and the use of the Funds.
6.3
Disclosure to Ministry. The Recipient shall:
(a)
disclose to the Ministry, without delay, any situation that a reasonable
person would interpret as either an actual, potential or perceived conflict of
interest; and
(b)
comply with any terms and conditions that the Ministry may reasonably
prescribe as a result of the disclosure.
ARTICLE 7
REPORTING, ACCOUNTING AND REVIEW
7.1
Preparation and Submission. The Recipient shall:
(a)
submit to the Ministry at the address provided in section 18.1, or in a
manner set out in Schedule “D”, all Reports in accordance with the
timelines and content requirements set out in Schedule “D”, or in a form as
specified by the Ministry from time to time;
(b)
submit to the Ministry at the address provided in section 18.1, or in a
manner specified by the Ministry, any other reports requested by the
Page 8 of 27
Ministry in accordance with the timelines and content requirements
specified by the Ministry;
(c)
(d)
7.2
ensure that all Reports and other reports are completed to the satisfaction
of the Ministry; and
ensure that all Reports and other reports are signed on behalf of the
Recipient by an authorized signing officer.
Record Maintenance. The Recipient shall keep and maintain, both during the
term of this Agreement and for a period of seven (7) years after:
(a)
(b)
7.3
all financial records (including invoices) relating to the Funds or otherwise
to the Program in a manner consistent with generally accepted accounting
principles; and
all non-financial documents and records relating to the Funds or otherwise
to the Program, including but not limited to, records and documents
containing personal information within the meaning of FIPPA, MFIPPA
and PIPEDA.
Inspection. The Ministry, its authorized representatives or an independent
auditor identified by the Ministry may, at its own expense, upon twenty-four
hours’ Notice to the Recipient and during normal business hours, enter upon the
Recipient’s premises to review the progress of the Program, the compliance with
the Agreement and the Recipient’s expenditure of the Funds and, for these
purposes, the Ministry, its authorized representatives or an independent auditor
identified by the Ministry may:
(a)
inspect and copy the records and documents referred to in section 7.2;
and
(b)
conduct an audit or investigation of the Recipient in respect of the
expenditure of the Funds and/or Program.
7.4
Disclosure. To assist in respect of the rights set out in section 7.3, the Recipient
shall disclose any information reasonably requested by the Ministry, its
authorized representatives or an independent auditor identified by the Ministry,
and shall do so in a form reasonably requested by the Ministry, its authorized
representatives or an independent auditor identified by the Ministry, as the case
may be.
7.5
No control of Records. No provision of the Agreement shall be construed so as
to give the Ministry any control whatsoever over the Recipient’s records.
Page 9 of 27
7.6
Auditor General. For greater certainty, the Ministry’s rights under this Article are
in addition to any rights provided to the Auditor General pursuant to section 9.(1)
of the Auditor General Act (Ontario).
ARTICLE 8
ACKNOWLEDGEMENT
8.1
Acknowledge Support. Unless otherwise directed by the Ministry, the Recipient
shall, in a form approved by the Ministry, acknowledge the support of the Ministry
in any publication of any kind, written or oral, relating to the Agreement or the
Program, including but not limited to any report, announcement, advertisement,
brochure, audio-visual material, design, website or other public communication.
8.2
Publication. If the Recipient publishes any material of any kind relating to the
Program, the Recipient shall indicate in the material that the views expressed in
the material are the views of the Recipient and do not necessarily reflect those of
the Ministry.
8.3
EO Visibility Guidelines. The Recipient shall comply with the Employment
Ontario Visibility Guidelines, which may be amended from time to time at the sole
discretion of the Ministry, available on the Employment Ontario Partners’
Gateway web site at http://www.eopg.ca.
ARTICLE 9
ACCESS TO INFORMATION AND PROTECTION OF PRIVACY
9.1
Access to Information. The Recipient acknowledges that the Ministry is bound
by FIPPA and undertakes to perform its obligations under the Agreement in a
manner that ensures that the Ministry is not in breach of its obligations under
FIPPA.
9.2
Disclosure. The Recipient acknowledges that any information provided to the
Ministry in connection with the Program or otherwise in connection with the
Agreement is subject to disclosure in accordance with FIPPA.
9.3
Protection of Privacy. The Recipient represents and warrants that it shall
protect privacy in accordance with FIPPA, MFIPPA or PIPEDA, if applicable, and
its protection of privacy policy described in section 2.3(a). Without limitation, the
Recipient shall:
a) designate an official who shall be responsible for ensuring the Recipient’s
compliance with the privacy protection provisions of the Agreement;
Page 10 of 27
b) implement appropriate privacy protection training of employees and
contractors who have access to personal information to carry out the
Program;
c) only collect, use and disclose personal information if necessary to carry out
the Program and comply with its obligations under the Agreement;
d) not use personal information that was collected for use in carrying out the
Program for any other purpose without the informed and voluntary written
consent of the individual;
e) limit access to personal information to employees and contractors who need
the personal information to carry out the Program and ensure the Recipient’s
compliance with its obligations under the Agreement;
f) before disclosing personal information to employees and contractors, enter
into an agreement with them requiring them to be bound by the Recipient’s
protection of privacy policy and the privacy protection provisions of the
Agreement;
g) ensure the security and integrity of any personal information collected by
implementing, using and maintaining the most appropriate products, tools,
measures and procedures to prevent the unauthorized or inadvertent
collection, use, disclosure, loss, alteration or destruction;
h) ensure that all personal information collected to carry out the Program will be
stored in, remain in and be accessible only within Canada;
i) provide clients with access to their own personal information in accordance
with FIPPA, MFIPPA or PIPEDA, if applicable, and the Recipient’s protection
of privacy policy;
j) ensure the secure and irreversible destruction of paper records containing
personal information when they are no longer needed to carry out the
Program or to comply with the obligations under the Agreement;
k) ensure that electronic records containing personal information that are no
longer needed to carry out the Program or to comply with the obligations
under the Agreement are not accessible until secure and irreversible
destruction is possible;
l) notify the Ministry as soon as the Recipient becomes aware of a potential or
actual breach of any of the privacy protection provisions of the Agreement;
m) cooperate with the Ministry and its contractors and auditors in any audit of or
investigation into a breach of the privacy protection provisions of the
Agreement; and
n) implement, use and maintain other specific privacy or security measures that
in the reasonable opinion of the Ministry would improve the adequacy and
effectiveness of the Recipient’s measures to ensure the privacy and security
of the records collected, created, used and disclosed to carry out the Program
and to comply with the obligations under the Agreement.
Page 11 of 27
ARTICLE 10
INDEMNITY
10.1
Indemnification. The Recipient hereby agrees to indemnify and hold harmless
the Indemnified Parties from and against any and all liability, loss, costs,
damages and expenses (including legal, expert and consultant fees), causes of
action, actions, claims, demands, lawsuits or other proceedings, by whomever
made, sustained, incurred, brought or prosecuted, in any way arising out of or in
connection with the Program or otherwise in connection with the Agreement,
unless solely caused by the negligence or wilful misconduct of the Ministry.
ARTICLE 11
INSURANCE
11.1
Recipient’s Insurance. The Recipient represents and warrants that it has, and
shall maintain for the term of the Agreement, at its own cost and expense, with
insurers having a secure A.M. Best rating of B+ or greater, or the equivalent, all
the necessary and appropriate insurance that a prudent person carrying out a
program similar to the Program would maintain, including commercial general
liability insurance on an occurrence basis for third party bodily injury, personal
injury and property damage, to an inclusive limit of not less than two million
dollars ($2,000,000) per occurrence. The policy shall include the following:
(a)
(b)
a cross-liability clause;
(c)
contractual liability coverage; and
(d)
11.2
the Indemnified Parties as additional insureds with respect to liability
arising in the course of performance of the Recipient’s obligations under,
or otherwise in connection with, the Agreement;
a 30 day written notice of cancellation, termination or material change.
Proof of Insurance. The Recipient shall provide the Ministry with certificates of
insurance, and renewal replacements on or before the expiry of any such
insurance, or other proof as may be requested by the Ministry, that confirms the
insurance coverage as provided for in section 11.1. Upon the request of the
Ministry, the Recipient shall make available to the Ministry a copy of each
insurance policy.
Page 12 of 27
ARTICLE 12
TERMINATION ON NOTICE
12.1
Termination on Notice. The Ministry may terminate the Agreement at any time
upon giving at least six (6) months Notice to the Recipient.
12.2
Consequences of Termination. If the Ministry terminates the Agreement
pursuant to section 12.1, the Ministry may:
(a)
cancel all further instalments of Funds;
(b)
demand the repayment of any Funds remaining in the possession or
under the control of the Recipient; and/or
(c)
determine the Wind Down Costs, and:
(i)
permit the Recipient to offset the Wind Down Costs against the
amount the Recipient owes pursuant to section 12.2(b); and/or
(ii)
subject to section 4.8, provide Funds to the Recipient to cover the
Wind Down Costs.
ARTICLE 13
TERMINATION WHERE NO APPROPRIATION
13.1
Termination Where No Appropriation. If, as provided for in section 4.3(d), the
Ministry does not receive the necessary appropriation from the Ontario
Legislature for any payment the Ministry is obligated to make under the
Agreement, the Ministry may terminate the Agreement immediately by giving
Notice to the Recipient.
13.2
Consequences of Termination. If the Ministry terminates the Agreement
pursuant to section 13.1, the Ministry may:
(a)
cancel all further instalments of Funds;
(b)
demand the repayment of any Funds remaining in the possession or
under the control of the Recipient; and/or
(c)
determine the Wind Down Costs and permit the Recipient to offset such
Wind Down Costs against the amount owing pursuant to section 13.2(b).
Page 13 of 27
13.3
No Additional Funds. For purposes of clarity, if the Wind Down Costs exceed
the Funds remaining in the possession or under the control of the Recipient, the
Ministry shall not be required to provide additional Funds to the Recipient.
ARTICLE 14
EVENT OF DEFAULT, ACTION UPON DEFAULT AND TERMINATION FOR
DEFAULT
14.1
Events of Default. Each of the following events shall constitute an “Event of
Default”:
(a)
in the opinion of the Ministry, the Recipient has knowingly provided false
or misleading information regarding its request for funds or in any other
communication with the Ministry;
(b)
in the opinion of the Ministry, the Recipient breaches any material
requirement of the Agreement, including failing to do any of the following
in accordance with the terms and conditions of the Agreement:
(i)
carry out the Program;
(ii)
use or spend Funds; and/or
(iii)
provide Reports or such other reports as may have been requested
pursuant to section 7.1(b), completed to the satisfaction of the
Ministry;
(c)
(d)
the Recipient makes an assignment, proposal, compromise, or
arrangement for the benefit of creditors, or is petitioned into bankruptcy, or
files for the appointment of a receiver; and
(e)
14.2
the nature of the Recipient’s operations, or its corporate status, changes
so that it no longer meets one or more of the applicable eligibility
requirements of the program under which the Ministry provides the Funds;
the Recipient ceases to operate.
Action upon Default. If an Event of Default occurs, the Ministry may, at any
time, take one or more of the following actions:
(a)
initiate any action the Ministry considers necessary in order to facilitate the
successful continuation or completion of the Program;
(b)
suspend the payment of Funds for such period as the Ministry determines
Page 14 of 27
appropriate;
(c)
(d)
cancel all further instalments of Funds;
(e)
demand the repayment of any Funds remaining in the possession or
under the control of the Recipient;
(f)
demand the repayment of an amount equal to any Funds the Recipient
used for purposes not agreed upon by the Ministry;
(g)
demand the repayment of an amount equal to any Funds the Ministry
provided to the Recipient; and/or
(h)
14.3
reduce the amount of the Funds;
terminate the Agreement immediately upon giving Notice to the Recipient.
Opportunity to Remedy. In addition to its rights provided for in section 14.2, the
Ministry may provide the Recipient an opportunity to remedy the Event of Default
by providing Notice to the Recipient:
(a)
(b)
14.4
of the particulars of the Event of Default; and
of the period of time within which the Recipient is required to remedy the
Event of Default.
Recipient not Remedying. If the Ministry has provided the Recipient with an
opportunity to remedy the Event of Default pursuant to section 14.3 and:
(a)
the Recipient does not remedy the Event of Default within the time period
specified in the Notice;
(b)
it becomes apparent to the Ministry that the Recipient cannot completely
remedy the Event of Default within the time period specified in the Notice
or such further period of time as the Ministry considers reasonable; or
(c)
the Recipient is not proceeding to remedy the Event of Default in a way
that is satisfactory to the Ministry,
the Ministry may initiate any one or more of the actions provided for in sections
14.2 (d), (e), (f) and (g).
14.5
Effective Date. The effective date of any termination under this Article shall be
the last day of the Notice period, the last day of any subsequent Notice period or
immediately, whichever applies.
Page 15 of 27
ARTICLE 15
FUNDS AT THE END OF A FUNDING YEAR
15.1
Funds at the End of a Funding Year. Without limiting any rights of the Ministry
under Article 14, if the Recipient has not spent all of the Funds allocated for the
Funding Year, the Ministry may:
(a)
demand the return of the unspent Funds; or
(b)
adjust the amount of any further instalments of Funds accordingly.
ARTICLE 16
FUNDS UPON EXPIRY
16.1
Funds Upon Expiry. Without limiting any rights of the Ministry under Article 14,
the Recipient shall, upon expiry of the Agreement, return to the Ministry any
Funds remaining in its possession or under its control.
ARTICLE 17
REPAYMENT
17.1
Debt Due. If the Recipient owes any monies, including any Funds, to the
Ministry, whether or not their return or repayment has been demanded by the
Ministry, such monies shall be deemed to be a debt due and owing to the
Ministry by the Recipient and the Recipient shall pay or return the amount to the
Ministry immediately unless the Ministry directs otherwise.
17.2
Interest Rate. The Ministry may charge the Recipient interest on any monies
owing by the Recipient at the then current interest rate charged by the Province
of Ontario on accounts receivable.
17.3
Payment of Monies to Ministry. The Recipient shall pay any monies owing to
the Ministry by certified cheque or bank draft payable to the “Ontario Minister of
Finance” and mailed to the Ministry at the address provided in section 18.1.
ARTICLE 18
NOTICE
18.1
Notice in Writing and Addressed. Notice shall be in writing and shall be
delivered by postage-prepaid mail, personal delivery or facsimile, and shall be
addressed to the Ministry and the Recipient respectively as set out below:
To the Ministry:
To the Recipient:
Page 16 of 27
Ministry of Training, Colleges and
Universities
Attention:
[@MTCU_Contract_Contact_Name@]
Fax: [@MTCU_Contract_Contact_Fax@]
[@Supplier_Name@]
[@Supplier_Address_Line1@]
[@Supplier_City@], ON
Attention:
[@MTCU_Contract_SP_Contact_Name
@]
[@MTCU_Contract_SP_Contact@]
[@MTCU_Contract_SP_Contact_Title
@]
Fax: [@MTCU_Contract_SP_Contact_Fax
@]
A Party may designate new contacts for Notice by providing Notice to the other
Party of the new information in accordance with this Article.
18.2
Notice Given. Notice shall be deemed to have been received:
(a)
(b)
18.3
in the case of postage-prepaid mail, seven days after such Notice is
mailed; or
in the case of personal delivery or facsimile, on the day such Notice is
received by the other Party.
Postal Disruption. Despite section 18.2(a), in the event of a postal disruption:
(a)
Notice by postage-prepaid mail shall not be deemed to be received; and
(b)
the Party giving Notice shall provide Notice by personal delivery or by
facsimile.
ARTICLE 19
SEVERABILITY OF PROVISIONS
19.1
Invalidity or Unenforceability of Any Provision. The invalidity or
unenforceability of any provision of the Agreement shall not affect the validity or
enforceability of any other provision of the Agreement. Any invalid or
unenforceable provision shall be deemed to be severed.
ARTICLE 20
WAIVER
20.1
Waivers in Writing. If a Party fails to comply with any term of the Agreement,
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that Party may only rely on a waiver of the other Party if the other Party has
provided a written waiver in accordance with the Notice provisions in Article 18.
Any waiver must refer to a specific failure to comply and shall not have the effect
of waiving any subsequent failures to comply.
ARTICLE 21
INDEPENDENT PARTIES
21.1
Parties Independent. The Recipient acknowledges that it is not an agent, joint
venturer, partner or employee of the Ministry and the Recipient shall not take any
actions that could establish or imply such a relationship.
ARTICLE 22
ASSIGNMENT OF AGREEMENT OR FUNDS
22.1
No Assignment. The Recipient shall not assign any part of the Agreement or
the Funds without the prior written consent of the Ministry.
22.2
Enurement. The Agreement shall enure to the benefit of and be binding upon
the Parties and their respective heirs, executors, administrators, successors and
permitted assigns.
ARTICLE 23
GOVERNING LAW
23.1
Governing Law. The Agreement and the rights, obligations and relations of the
Parties shall be governed by and construed in accordance with the laws of the
Province of Ontario and the applicable federal laws of Canada. Any actions or
proceedings arising in connection with the Agreement shall be conducted in
Ontario.
ARTICLE 24
FURTHER ASSURANCES
24.1
Agreement into Effect. The Parties shall do or cause to be done all acts or
things necessary to implement and carry into effect the terms and conditions of
the Agreement to its full extent.
ARTICLE 25
SURVIVAL
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25.1
Survival. The provisions in Article 1, sections 4.7(b), 5.2, 7.1 (to the extent that
the Recipient has not provided the Reports or other reports), 7.2, 7.3, 7.4, 7.5,
7.6, Articles 8, 9 and 10, sections 12.2, 13.2, 13.3, 14.1, 14.2(c), (d), (e), (f) and
(g), Articles 16, 17, 18, 19, 23, 25, 26 and 28, and all applicable Definitions,
cross-referenced provisions and schedules shall continue in full force and effect
for a period of seven years from the date of expiry or termination of the
Agreement.
ARTICLE 26
SCHEDULES
26.1
Schedules. The Agreement includes the following schedules:
(a)
Schedule “A” – Program Description
(b)
Schedule “B” – Budget and Performance Commitments;
(c)
Schedule “C” – Payment Schedule; and
(d)
Schedule “D” – Reports.
ARTICLE 27
COUNTERPARTS
27.1
Counterparts. The Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
ARTICLE 28
ENTIRE AGREEMENT
28.1
Entire Agreement. The Agreement constitutes the entire agreement between
the Parties with respect to the subject matter contained in the Agreement and
supersedes all prior oral or written representations and agreements.
28.2
Modification of Agreement. At any time prior to its expiry, the Agreement may
be amended by a document in writing, dated and signed by the Parties.
The Parties have executed the Agreement on the dates set out below.
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
as represented by the Minister of Training, Colleges and
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Universities
_________________________
________________
Name:[@MTCU_ETD_Contract_MTCU_Signatory_Name@]
Date
Title: [@MTCU_ETD_Contract_MTCU_Signatory_Title@]
[@Supplier Name@]
_________________________
Name:
Position:
________________
Date
_________________________
Name:
Position:
________________
Date
I/We have authority to bind the Recipient.
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SCHEDULE “A”
Attached to and forming part of an Agreement between Her Majesty the Queen in right
of Ontario, as represented by the Minister of Training, Colleges and Universities (the
“Ministry”) and [@Supplier_Name@] (the “Recipient”), made effective as of
[@MTCU_ETD_Agreement_Effective_Date@].
1. Background
The Ontario Literacy and Basic Skills (LBS) Program includes both lower level
literacy training and academic upgrading to form a comprehensive and integrated
adult learning service. Organizations provide literacy services that assist learners in
moving toward their training, education, employability, and independence goals.
The Ministry enters into agreements under the LBS Program with:
1. Support Organizations
2. Service Delivery Organizations
Service delivery is the primary focus of the Program. It encompasses a number of
specific services that are provided directly to learners. These services range from
outreach to adults who want to upgrade their literacy and basic skills, to training that
is tailored to learners' needs and level, through post-training follow-up to measure
the impact of participation in the Program on learners' progress toward their
individual goals.
Service development includes activities that support and improve delivery
organizations' ability to provide quality literacy services. On-going assistance from
support organizations help the service delivery organizations to continuously
upgrade their capacity to provide the services learners need. These services help
ensure that the Program is innovative and relevant to learners and communities, as
well as cost-effective.
The Recipient is a Support Organization.
2. Guidelines
The Recipient shall carry out the Program in accordance with the Guidelines, as
applicable to Support Organizations.
3. Find a Service
The Recipient shall promptly update the “Find a Service” on the Employment Ontario
website http://www.tcu.gov.on.ca/eng/search.html with any changes to their
organization contact information as follows:
Use the link to search for their organization;
Click on their organization’s record;
On the map, click More info;
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Click Update for instructions to update their information.
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SCHEDULE “B”
Attached to and forming part of an Agreement between Her Majesty the Queen in right
of Ontario, as represented by the Minister of Training, Colleges and Universities (the
“Ministry”) and [@Supplier Name@] (the “Recipient”), made effective as of
[@MTCU_ETD_Agreement_Effective_Date@].
BUDGET AND PERFORMANCE COMMITMENTS
Total Maximum Budget for Funding Year 2011-2012
$[@MTCU_ETD_Total_Maximum_Budget_2011_2012@]
Old LBS Agency Number: [@MTCU_ETD_Old_LBS_Agency_Number@]
EOIS Site Number: [@MTCU_ETD_SDS_Number@]
Local Board Number: [@MTCU_ETD_SDS_Local_Board_Number@]
2011 - [@MTCU_ETD_Fiscal_Yr@]
Budget
Operating Funds
Funding Categories
$[@MTCU_ETD_B_Operating@]
Other Funding 1
$[@MTCU_ETD_B_Other_Funding_1@]
Other Funding 2
$[@MTCU_ETD_B_Other_Funding_2@]
Other Funding 3
$[@MTCU_ETD_B_Other_Funding_3@]
Other Funding 4
$[@MTCU_ETD_B_Other_Funding_4@]
Other Funding 5
$[@MTCU_ETD_B_Other_Funding_5@]
Other Funding 6
$[@MTCU_ETD_B_Other_Funding_6@]
TOTAL Budget
$[@MTCU_ETD_Budget_Line_Total@]
Site Schedule Number: [@MTCU_ETD_Site_Schedule_Number@]
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PERFORMANCE COMMITMENTS
Core Activities
Activity #
Activity 1
Activity 2
Activity 3
Activity 4
Activity 5
Activity 6
Activity 7
Activity 8
Activity 9
Activity 10
Activity 11
Activity 12
Activity 13
Activity 14
Description
End Date
[@MTCU_ETD_T_Activity_1@]
[@MTCU_ETD_T_Activity_2@]
[@MTCU_ETD_T_Activity_3@]
[@MTCU_ETD_T_Activity_4@]
[@MTCU_ETD_T_Activity_5@]
[@MTCU_ETD_T_Activity_6@]
[@MTCU_ETD_T_Activity_7@]
[@MTCU_ETD_T_Activity_8@]
[@MTCU_ETD_T_Activity_9@]
[@MTCU_ETD_T_Activity_10@]
[@MTCU_ETD_T_Activity_11@]
[@MTCU_ETD_T_Activity_12@]
[@MTCU_ETD_T_Activity_13@]
[@MTCU_ETD_T_Activity_14@]
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SCHEDULE “C”
Attached to and forming part of an Agreement between Her Majesty the Queen in right
of Ontario, as represented by the Minister of Training, Colleges and Universities (the
“Ministry”) and [@Supplier Name@] (the “Recipient”), made effective as of
[@MTCU_ETD_Agreement_Effective_Date@].
PAYMENT SCHEDULE
2011-2012
PAYMENT DATE
AMOUNT
If the total Maximum Budget for Funding
Year 2011-2012 is $100,000 or more:
April 2011
25% of the total Maximum Budget for
Funding Year 2011-2012 as set out in
Schedule “B”.
Monthly from July 2011 to March 2012
1/9th of the remaining 75% of the total
Maximum Budget for Funding Year 20112012 as set out in Schedule “B”.
If the total Maximum Budget for Funding
Year 2011-2012 is less than $100,000:
April 2011
35% of the total Maximum Budget for
Funding Year 2011-2012 as set out in
Schedule “B”.
July 2011
15% of the total Maximum Budget for
Funding Year 2011-2012 as set out in
Schedule “B”.
October 2011
25% of the total Maximum Budget for
Funding Year 2011-2012 as set out in
Schedule “B”.
January 2012
25% of the total Maximum Budget for
Funding Year 2011-2012 as set out in
Schedule “B”.
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2012-2013
PAYMENT DATE
AMOUNT
If the total Maximum Budget for Funding
Year 2012-2013 is $100,000 or more:
April 2012
25% of the total Maximum Budget for
Funding Year 2012-2013 as set out in the
Revised Schedule “B”.
Monthly from July 2012 to March 2013
1/9th of the remaining 75% of the total
Maximum Budget for Funding Year 20122013 as set out in the Revised Schedule
“B”.
If the total Maximum Budget for Funding
Year 2012-2013 is less than $100,000:
April 2012
35% of the total Maximum Budget for
Funding Year 2012-2013 as set out in the
Revised Schedule “B”.
July 2012
15% of the total Maximum Budget for
Funding Year 2012-2013 as set out in the
Revised Schedule “B”.
October 2012
25% of the total Maximum Budget for
Funding Year 2012-2013 as set out in the
Revised Schedule “B”.
January 2013
25% of the total Maximum Budget for
Funding Year 2012-2013 as set out in the
Revised Schedule “B”.
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SCHEDULE “D”
Attached to and forming part of an Agreement between Her Majesty the Queen in right
of Ontario, as represented by the Minister of Training, Colleges and Universities (the
“Ministry”) and [@Supplier Name@] (the “Recipient”), made effective as of
[@MTCU_ETD_Agreement_Effective_Date@].
REPORTS
NAME OF REPORT
DUE DATE
1. Estimate of Expenditure Report
2. Statement of Revenue and Expenditure
Report
3. Auditor’s Report
4. Reports specified from time to time
As specified in the Audit and
Accountability Requirements
On a date or dates specified by the
Ministry
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