Funding Agreement Model - Other - 2015–2016

1 The purpose of the Agreement

1.1 The Recipient wishes to undertake an initiative and receive funds from the Government of Canada to assist with the costs, and agrees to account for the use of all funds provided and the results achieved with these funds.

1.2 The Government of Canada wishes to provide funds to support the Recipient's identified objectives for the initiative.

1.3 This Agreement describes the rules that apply to the funding being provided for an initiative and the duties of the Recipient and the Government of Canada under this Agreement.

2 The parts that make up the Agreement

2.1 "Agreement" means:

1. all the sections of this Agreement
2. the Annexes that are part of this Agreement:
   • Annex 1 - Definitions of Words and Terms Underlined in the Agreement
   • Annex 2 - Program, Service, and Activity Delivery Requirements and Adjustment Factors - DIAND Funding
   • Annex 3 - Conditions of Payment - DIAND Funding
   • Annex 4 - Payment Plan
   • Annex 5 - Reporting Requirements and Due Dates - DIAND Funding
3. any amendments to and notices under this Agreement that are made according to its terms.

3 The scope of the Agreement

3.1 This Agreement is the complete agreement between the parties and replaces all previous negotiations, agreements, commitments, written correspondence, and discussions between the Government of Canada and the Recipient about its subject matter.

4 Duration of the Agreement

4.1 Unless this Agreement ends early, the duration of this Agreement is from the [Multi Year Start Date Day] day of [Multi Year Start Date Month], [Multi Year Start Date Year] until the [Multi Year End Date Day] day of [Multi Year End Date Month], [Multi Year End Date Year].

5 Government of Canada funding

5.1 The Government of Canada will make payments to the Recipient, according to the terms of this Agreement:

1. for the purpose(s) set out in Annex 2 - Program, Service, and Activity Delivery Requirements and Adjustment Factors - DIAND Funding
2. up to the maximum amounts set out in Annex 3 - Conditions of Payment - DIAND funding, and
3. following the payment schedule in Annex 4 - Payment Plan.

6 Funding legislation and federal funding programs

6.1 An obligation on the Government of Canada to make a payment under this Agreement is dependent on an appropriation of funds by the Parliament of Canada for the fiscal year in which the payment is to be made, regardless of any other provision in this Agreement.

6.2 Any federal department providing funding under this Agreement may change or end the funding when:

1. the Treasury Board of Canada changes or ends the funding program through which the funding is being provided
2. the Minister presiding over that department changes or ends the funding program through which the funding is being provided, or
3. the Parliament of Canada changes the funding levels of that department for the fiscal year in which the funding was to be provided.

7 Funds to be withheld - failure to file required reports

7.1 The Government of Canada may withhold funds from the Recipient when the Recipient has not submitted, by the due date, any financial or other report required by this Agreement or by a predecessor funding agreement between the Recipient and a federal department providing funding under this Agreement. The default provisions of this Agreement may also apply.

7.2 The Government of Canada will pay the withheld funds to the Recipient within 45 days of the required reports being submitted by the Recipient and accepted by the Government of Canada, subject to the provisions on Overspending (section 16.1) and Overpayments owing to the Government of Canada (section 17.1).

8 General duties

8.1 The Recipient must:

1. provide each program or service, or carry out each activity, according to the terms in Annex 2 - Program, Service, and Activity Delivery Requirements and Adjustment Factors - DIAND funding,
2. track the receipt and use of funds according to the terms in Annex 3 - Conditions of Payment - DIAND funding, and
3. give notice (section 38, Notices in writing) promptly to any federal department that is providing over $100,000 funding for an initiative under this Agreement when the Recipient receives funding assistance from any other federal department, or any provincial, territorial, or municipal government for the same initiative. DIAND may require the Recipient to pay back to DIAND any amount of DIAND funding that DIAND considers a duplication of funding from another source.

9 The use of Government of Canada funds

9.1 The Recipient must use the funds provided by the Government of Canada for the eligible costs of each initiative described in Annex - 2 - Program, Service, and Activity Delivery Requirements and Adjustment Factors - DIAND funding.

9.2 The Recipient must not loan any of the funds provided by the Government of Canada under this Agreement unless permitted to do so in an annex to this Agreement.

10 Record-keeping duties

10.1 The Recipient must keep financial records, including accounts, and non-financial records for each initiative.

10.2 The Recipient must maintain financial records in a way that substantiates the financial reports required under this Agreement. These records must also allow for audit as required by section 25.1 (Financial records to allow for audit).

10.3 The Recipient must store these financial and non-financial records, including all original supporting documentation, for 7 years. The 7 years start to run on the April 1st that follows the last fiscal year to which a record relates.

11 Reporting duties

11.1 By the reporting due dates set out in Annex 5 - Reporting Requirements and Due Dates - DIAND Funding, the Recipient must provide DIAND with:

1. the financial reports required by the Reporting Guide for each fiscal year, or part of the year, that is within the time period covered by this Agreement, and
2. any other required reports including those identified in Annex 5 - Reporting Requirements and Due Dates - DIAND Funding and described in the Reporting Guide or in Annex 2 - Program, Service, and Activity Delivery Requirements and Adjustment Factors - DIAND Funding.

11.2 The Recipient must also provide any other federal department that is providing funding under this Agreement with all the required reports identified in the annex relating to that funding.

11.3 The Recipient may request, in writing to the relevant funding department, before the due date, a deadline extension for providing a report required by the Agreement. The written request must explain the circumstances beyond the Recipient's control that prevent the Recipient from meeting the due date. The Government of Canada may agree to an extension and, if it so decides, will provide the Recipient with a written notice setting out the new due date.

11.4 The Government of Canada will notify the Recipient that it has received the Recipient's financial report within 30 days of receiving it.

11.5 If this Agreement covers more than one fiscal year, DIAND will provide by notice a revised Annex 5 - Reporting Requirements and Due Dates - DIAND Funding for each new fiscal year. The Annex for the previous fiscal year will continue to apply in respect of that fiscal year.

12 Recipient accountability for the obligations in this Agreement

12.1 The Recipient may not assign, delegate, or subcontract any of its obligations under this Agreement and may not transfer funds to an agency to carry out or manage all or part of any initiative funded under this Agreement.

13 Timing of payments for eligible costs

13.1 Annex 4 - Payment Plan sets out the amounts and the timing of payments for the Recipient's eligible costs under this Agreement. The Recipient must use the funds provided for the purpose, in the amounts, and during the timeframe detailed in Annex 4.

14 Changes in funding needs or timing - no increase in maximum payable

14.1 When the Recipient becomes aware that advance payments to be made for an initiative according to the schedule in Annex 4 - Payment Plan are no longer accurate and that there is a need for funds sooner or there will be a delay before some funds are required, the Recipient must notify the relevant funding department promptly and propose appropriate amendments to Annex 4. A change in the amount or timing of an advance payment may not increase the overall amount of funding for an initiative.

14.2 The relevant funding department will notify the Recipient of its acceptance or rejection of the proposed adjustment within 30 days. When the funding department agrees to make an adjustment, it will send a Notice of Cash Flow Adjustment to the Recipient and attach the appropriately amended Annex 4.

15 Changes in funding affecting the amount payable - adjustment factor

15.1 When the amount of funding to be provided to the Recipient changes according to an adjustment factor set out in Annex 2 - Program, Services, and Activity Delivery Requirements and Adjustment Factors - DIAND Funding, the relevant funding department will send the Recipient a Notice of Budget Adjustment with the appropriately amended Annex 3 and Annex 4 - Payment Plan.

16 Overspending - Recipient's responsibility

16.1 The Recipient is responsible for any expenses that the Recipient has incurred for an initiative which are more than the amount of funding provided for eligible costs under this Agreement.

17 Overpayments owing to the Government of Canada

17.1 Any amount that the Recipient is required to pay back to the Government of Canada or that the Recipient otherwise owes to the Government of Canada is a debt due to the Government of Canada. The debt becomes payable when the Government of Canada notifies the Recipient of the debt. After giving this notice, the Government of Canada may set off the debt against any amount payable to the Recipient under this Agreement or any other agreement through which a federal department provides funding to the Recipient.

17.2 Without limiting the default (section 18) or termination (section 29) provisions of this Agreement, the Recipient must repay the Government of Canada any overpayment of funds provided to the Recipient according to the provisions in Annex 3 - Conditions of Payment - DIAND funding and Annex 4 - Payment Plan.

17.3 An overpayment may occur, for example, when:

1. the Recipient did not spend all the funds provided by the Government of Canada
2. the Recipient did not spend funds on eligible costs during the fiscal year in which they were allocated to be spent and Annex 3 does not allow any other option
3. the Recipient spent funds on an expense that is not an eligible cost, or
4. the Government of Canada made an overpayment in error.

17.4 The Recipient may include payment of the debt due to the Government of Canada with its financial report identifying the overpayment.

17.5 The Government of Canada will charge interest on overdue amounts owing under this Agreement in accordance with the Interest and Administrative Charges Regulations, SOR/96-188, made under the Financial Administration Act.

18 Circumstances of default

18.1 The Recipient is in default of this Agreement when:

1. the Recipient defaults on any of its obligations set out in this Agreement or in any other funding agreement with a federal department providing funding under this Agreement
2. the Recipient's independent auditor gives a disclaimer of opinion or adverse opinion of the financial statements of the Recipient required under this Agreement or under any previous funding agreement between the Recipient and a federal department providing funding under this Agreement which required an independent audit
3. a Minister representing the Government of Canada in this Agreement is of the opinion, after having reviewed the Recipient's financial reports and any other financial information, that the Recipient's financial position puts an initiative at risk, or
4. the Recipient becomes bankrupt or insolvent, goes into receivership, takes the benefit of any statute relating to bankrupt or insolvent debtors, ceases operations, or ceases to be a corporation in good standing under the applicable laws of Canada or of a province or territory.

19 Commitment to communicate

19.1 In the event that the Recipient is in default, the parties will communicate or meet to review the situation.

20 Remedies on default

20.1 Despite section 19.1, in the event that the Recipient is in default of this Agreement, the Government of Canada may take one or more of the following actions:

1. require the Recipient to develop and implement a Management Action Plan within 60 calendar days, or within another time agreed to by the parties in writing
2. require the Recipient to seek advisory support from a source and of a type acceptable to the Government of Canada
3. withhold any funds otherwise payable under this Agreement
4. require the Recipient to take any other reasonable action necessary to remedy the default
5. take such other reasonable action as the Government of Canada deems necessary, including any remedies which may be set out by a federal department in an Annex to this Agreement, or
6. terminate this Agreement.

20.2 Despite the reference to the Government of Canada in section 20.1, the remedies set out there may be exercised by any one or more of the federal departments providing funding to the Recipient under this Agreement.

21 Disclosure of financial records to other departments

21.1 Without limiting the Government of Canada's right to conduct an audit under section 24 or its options under section 20 (Remedies on default), when the Recipient defaults on an obligation under this Agreement to make a financial report available to a requesting federal department that is providing funding under this Agreement, DIAND may provide the relevant financial reports to that federal department.

22 Disclosure of information by the Government of Canada

22.1 The Government of Canada may make public:

1. the name of the Recipient
2. the amount of funding provided under this Agreement, and
3. the general nature of each initiative described in Annex 2 - Program, Service, and Activity Delivery Requirements and Adjustment Factors

22.2 Section 22.1 does not limit the rights or obligations that the Government of Canada has to disclose information.

23 Publicity about funding

23.1 Either the Government of Canada or the Recipient may propose to the other party a joint public announcement or the development of joint communication materials that recognize the Government of Canada's funding for an initiative under this Agreement. Communication materials may include public events, media releases, interviews, speeches, publications, signage, websites, advertising, and promotional materials.

23.2 The party making the proposal will provide time for the other party to respond in writing before the communication release or event. The party receiving the proposal will respond as soon as reasonably possible to facilitate attendance and to allow for the timely production and distribution of the communication material.

24 Government of Canada right to audit and evaluate

24.1 Any federal department that provides funding under this Agreement, individually or with any other federal department that provides funding under this Agreement, may:

1. audit the records of the Recipient or any agency to assess compliance with this Agreement or to confirm the integrity of any information reported to the Government of Canada under this Agreement, or
2. audit or evaluate the Recipient's management and financial control practices in relation to this agreement or the effectiveness of any or all of the initiatives funded under this Agreement.

24.2 The Government of Canada will decide on the number, scope, coverage, and timing of any audit(s) or evaluation(s).

24.3 An audit or evaluation may be carried out by one or more auditors or evaluators employed by or on contract to the Government of Canada.

24.4 When an audit or evaluation under this section takes place, the Recipient must cooperate in the conduct of the audit or evaluation and, upon request, assist the auditor(s) or evaluator(s) and provide them with the information that they require including by:

1. providing them with:
   1. access to all records relating to this Agreement and to the funding provided under this Agreement, including all original supporting documents, and
   2. any other information that they may require with respect to these records
2. allowing them to inspect these records
3. allowing them to make copies or extracts of these records unless that is prohibited by law
4. providing them with records maintained under any previous agreement by which the Government of Canada provided funding to the Recipient and which, in the opinion of the auditors or evaluators, may be relevant to the audit or evaluation
5. providing them with access to the Recipient's premises, and
6. in the case of an audit,
   1. directing anyone who has provided the Recipient with accounting or record-keeping services to provide copies of those accounts and other records to the auditor(s).

24.5 The audit and evaluation opportunities that this section gives to any federal department that provided funding under this Agreement and the duties that it imposes on the Recipient continue for 7 years after the termination or expiry of the Agreement.

25 Financial records to allow for audit

25.1 The Recipient must maintain financial records, including accounting documentation, regarding all funding provided by the Government of Canada in a way that will allow for audit.

26 Relationship between the Recipient and the Government of Canada

26.1 This Agreement does not and is not intended to create an agency, association, employer-employee, or joint venture relationship between the Recipient and the Government of Canada. The Recipient may not suggest that it does.

27 Amendments to this Agreement

27.1 This Agreement may only be amended by a written agreement signed by the Government of Canada and the Recipient. Except, the Government of Canada may amend this Agreement without the agreement of the Recipient when it makes a change to:

1. extend a reporting due date under section 11.3
2. funding under section 6.1 and 6.2
3. the Payment Plan by a Notice of Cash Flow Adjustment (section 14.2), or
4. an amount of funding by a Notice of Budget Adjustment (section 15.1).

28 Dispute resolution

28.1 The parties agree to attempt to resolve disputes with respect to this Agreement through negotiation or another appropriate dispute resolution process, except that a dispute resolution process will not be used regarding:

1. a Recipient budget decision made in accordance with this Agreement
2. the amount of funding provided under this Agreement
3. a Government of Canada audit or evaluation
4. a Government of Canada decision that the Recipient is in default
5. any action taken by the Government of Canada under section 6 (Funding legislation and federal funding programs) or section 20 (Remedies on default), and
6. matters of Government of Canada policy.

28.2 In the event that the parties are unable to resolve the dispute through negotiation and agree to use mediation, the Government of Canada and the Recipient will share the costs of mediation equally. The Recipient must not use funds provided under the Agreement to cover any mediation costs.

28.3 No one may use any information from discussions, meeting notes, offers of settlement, or other oral or written communications from a dispute resolution process in any legal proceedings unless the law requires it. This restriction does not apply to information or communications that would have been admissible or subject to discovery rules in a legal proceeding if the dispute resolution process had not taken place.

29 Termination of the Agreement

29.1 Without limiting section 6 (Funding legislation and federal funding programs) or section 20 (Remedies on default), a party wishing to terminate this Agreement must communicate its intentions to the other party. The parties must:

1. try to resolve any dispute following the process in section 28, when applicable, and
2. agree to a winding up timeframe that will not jeopardize the initiative(s).

29.2 Once the requirements of section 29.1 have been met, the party wishing to terminate the Agreement under that section must give the other party at least 60 days written notice. The notice must include the reason for its decision to terminate the Agreement.

29.3 In the case of the termination of this Agreement, including termination under section 20 (Remedies on default):

1. the Recipient must provide the Government of Canada with the financial reports required under section 11 (Reporting duties) within 120 days of the termination date of this Agreement
2. the Recipient must return to the Government of Canada any funds provided under this Agreement that were unspent by its termination date and must repay any debts owed to the Government of Canada under this Agreement as required by section 17 (Overpayments owing to the Government of Canada), and
3. unless the Government of Canada and the Recipient agree otherwise in writing, the Government of Canada will pay any amount it owes the Recipient under this Agreement up to its termination date or may set off any amount owed to the Recipient against any amount the Recipient owes it under this Agreement or under any other funding agreement between the Recipient and the Government of Canada.

29.4 This section survives the termination or expiry of this Agreement.

30 Obligations that continue after the Agreement ends

30.1 In addition to the sections which specifically state that the section continues to apply after the termination or expiry of the Agreement, the obligations in the following sections also survive the termination or expiry of this Agreement:

1. section 10, Record-keeping duties
2. section 11, Reporting duties
3. section 12, Recipient accountability for obligations in the Agreement
4. section 16, Overspending
5. section 17, Overpayments owing to the Government of Canada
6. section 21, Disclosure of financial records to other government departments
7. section 22, Disclosure of information by the Government of Canada
8. section 23, Publicity about funding, and
9. section 25, Financial records to allow for audit.

31 Written waiver required

31.1 A party's waiver in relation to this Agreement is only valid when that party has put the waiver in writing.

31.2 A party does not lose a right to take action under this Agreement because it waived its right to act on a previous occasion.

32 Right to indemnity, protection from liability

32.1 The Recipient will indemnify the Government of Canada, its Ministers, officers, employees, servants, agents, successors, and assigns from any claims, liabilities, and demands arising directly or indirectly from:

1. any act, omission, or negligence of the Recipient or any agency acting for the Recipient
2. any breach of this Agreement by the Recipient, or
3. the fulfillment, in whole or in part, or the non-fulfillment of any of the Recipient's obligations under this Agreement.

32.2 The Recipient will not hold the Government of Canada liable for any losses it may experience from any claims, liabilities, and demands that may arise as a result of the Recipient, or any agency acting for the Recipient, entering into any loan, capital lease, or other long-term obligation.

32.3 The right to indemnity and the liability protection this section provides to the Government of Canada continues after the end of this Agreement.

33 Insurance

33.1 The Recipient is responsible for deciding on the need for insurance coverage for its own protection and to cover its obligations under this Agreement.

34 Legislation and government documents

34.1 In this Agreement, a reference to federal legislation means the federal legislation in force at the time of the signing of this Agreement and includes any subsequent amendments to it. A reference to Government of Canada documents means the Government of Canada documents available at the time of the signing of this Agreement and their replacements.

34.2 DIAND will publish a Reporting Guide for each fiscal year before the fiscal year begins. DIAND may amend a Reporting Guide during the fiscal year only if the amendment arises from a requirement of the Treasury Board of Canada. DIAND will promptly inform the Recipient of any such amendment.

34.3 The laws of Canada and the laws of the province or territory in which the initiative(s) funded under this Agreement takes place will be used to interpret this Agreement.

35 Definitions

35.1 Words and terms that have a special meaning in the Agreement are underlined and defined in Annex 1 - Definitions of the Words and Terms that are underlined in the Agreement.

36 Aids to usability

36.1 The Table of Contents, section headings, and Index are not part of this Agreement and are not to be used to interpret this Agreement. They are in place to help the reader to find topics more easily.

37 Effect of the Agreement on the parties

37.1 This Agreement is binding on the Recipient and the Government of Canada, and their respective administrators and successors.

38 Notices in writing

38.1 When this Agreement requires one party to give the other party a notice, request, or direction, it must be in writing, and addressed as indicated in this section.

38.2 The notice may be delivered in one of the following ways with the date of the notice being as indicated:

1. by personal delivery in which case the date of the notice will be the date on which it was delivered
2. by registered mail or courier, in which case the date of the notice is the date the addressee party acknowledged receipt of the notice
3. by facsimile or electronic mail, in which case the date of the notice is the date upon which the notice was transmitted and its receipt by the other party can be confirmed.

38.3 Either party may change the address information in this Agreement by providing notice to the other party.

38.4 For the purpose of this Agreement, a notice is to be addressed to:

1. the Recipient at:
2. DIAND at:

39 Recipient warranties

39.1 The Recipient warrants that any person lobbying on its behalf is registered as required by the Lobbying Act.

39.2 The Recipient warrants that no member of the House of Commons or the Senate of Canada will have a share or part of any benefit arising from this Agreement that is not also available to the general public.

39.3 The Recipient warrants that no individual to whom the post-employment provisions of the Conflict of Interest Act, the Conflict of Interest and Post-Employment Code for Public Office Holders, the Values and Ethics Code for the Public Sector, the Values and Ethics Code for the Public Service, the Policy on Conflict of Interest and Post-Employment, or the values and ethics code of any Federal Department apply will derive any benefit from this Agreement unless the individual is in compliance with all the applicable post-employment provisions.

39.4 The Recipient warrants that it is a corporation in good standing under the applicable laws of Canada or of a province or territory and that it will remain in good standing during this Agreement.

Signed on (Insert date) ______________
by the Government of Canada's authorized representative(s):

______________________________________
(Insert name and title)
Department of Indian Affairs and Northern Development

Witness:

______________________________________
(Insert name and title)

Date :_________

I have the authority to bind the corporation.

Signed on (Insert date) ______________
authorized representative(s):

______________________________________
(Insert name and title)

Witness:

______________________________________
(Insert name and title)

Date :_________

Basic funding principles

Recipients must:

• use funds for the initiative(s) identified in Annex 2 (section 9.1)
• use funds only for eligible costs up to the maximum allowed (section 9.1)
• use funds in the fiscal year for which they were provided (section 13)
• over any overspending that occurs when initiative costs are greater than the amount of initiative funding provided by the Government of Canada (section 16)
• report on the use of funds as required (section 11)

Note:

• any overpayment is a debt due to the Government of Canada (section 17)

1 General matters

1.1 Subject to the terms of this Agreement, maximum amounts payable by DIAND to the Recipient by fiscal year are as follows:

• An amount of up to [Arrangement Amount Year 1 Alpha] dollars ($[Arrangement Amount Year 1 Numeric]) for Fiscal Year [Fiscal Year 1];
• An amount of up to [Arrangement Amount Year 2 Alpha] dollars ($[Arrangement Amount Year 2 Numeric]) for Fiscal Year [Fiscal Year 2];
• An amount of up to [Arrangement Amount Year 3 Alpha] dollars ($[Arrangement Amount Year 3 Numeric]) for Fiscal Year [Fiscal Year 3];

1.2 The Payment Plan in Annex 4 identifies the maximum amounts payable for each initiative for each fiscal year.

1.3 Subject to the terms of this Agreement, DIAND will make payments to the Recipient according to the provisions in section 2 (Payment specifics).

1.4 Depending on the circumstances, payments may be:

• advanced to the Recipient
• reimbursed after the Recipient meets the conditions set out below under "Payment request requirements",
• held back until the Recipient has met the conditions set out below under "Holdback requirements".

1.5 When the Recipient fails to report on an eligible cost as required by this Agreement, any funds advanced to the Recipient for that cost will be deemed to be an overpayment which must be paid back to DIAND.

2 Payment specifics

3 Unexpended funds repayment - more than one funding source

3.1 When the Recipient has to repay money to DIAND under this Annex, the Recipient must follow these allocation rules:

1. When the Recipient has received funding from more than one source for the same initiative but to cover different types of initiative expenses, the Recipient must repay DIAND amounts advanced by DIAND that were not used for the DIAND-funded initiative expenses set out in Annex 2 - Program, Service, and Activity Delivery Requirements and Adjustment Factors - DIAND funding.
2. When the Recipient received funding from more than one source for the same initiative to cover the same types of initiative expenses, the Recipient must calculate the percent of the total initiative funding that was received from DIAND and repay DIAND the same percent from all the unexpended funds.