WDP Contribution Agreement
Project No.:
THIS AGREEMENT made in duplicate
BETWEEN:
Her Majesty the Queen in Right of Canada
as represented by the of Western Economic Diversification
(the "Minister")
- and -
located at
(the "Recipient")
WHEREAS:
- The Minister is offering the Recipient a financial Contribution under the Western Diversification Program for the Project described in this Agreement.
- The Recipient wishes to accept the financial Contribution under the terms and conditions set out in this Agreement.
NOW THEREFORE, in consideration of the promises and payments made herein, the parties agree as follows:
- DEFINITIONS
1.1 Unless otherwise defined herein, the following terms shall have the following meanings:
- "Agreement" means this agreement together with all schedules and attachments and all amendments made in writing between the parties.
- "Assisted Capital Costs" means those costs described in the Statement of Work.
- "Assisted Non-Capital Costs" means those costs described in the Statement of Work.
- "Cancellation Date" means the date set out in the Statement of Work, which is the latest date by when the Recipient shall demonstrate to the Minister that the Project has commenced, which is usually indicated by the Recipient incurring Project Costs.
- "Completion Date" means the date set out in the Statement of Work, by when the Recipient must finish work on the Project.
- "Contribution" means the non-repayable conditional financial payment from the Minister to the Recipient, described in more detail and the amount of which is set out in the Statement of Work, which shall only be applied towards the Project Costs, which are assisted.
- "Non-Assisted Capital Costs" means those costs described in the Statement of Work.
- "Non-Assisted Non-Capital Costs" means those costs described in the Statement of Work.
- "Notice of Default" has the meaning ascribed to it in Section 6.2 of this Agreement.
- "Performance Indicators" means the indicators more particularly described in the Statement of Work that the parties shall use to measure the progress and success of the Project.
- "Project" means the project described in the Statement of Work.
- "Project Costs" means those costs described in the Statement of Work.
- "Stacking" means the maximum total funding toward the project, from federal, provincial and municipal government sources, expressed as a percentage of Total Project Costs as shown in the Statement of Work.
- "Statement of Work" means the document attached to this Agreement as Attachment "A".
- "Start Date" means the date set out in the Statement of Work, as the earliest date on which the Recipient can begin incurring Project Costs.
- "Final Client Reporting Date" means the date set out in the Statement of Work, which is the final date by when the Recipient shall have provided such information and reports as requested by the Minister, with respect to the attainment of the Performance Indicators.
- "Western Canada" means the provinces of British Columbia, Alberta, Saskatchewan and Manitoba.
- "Contingency Fee" means any payment or other compensation that is contingent upon or is calculated upon the basis of a degree of success in soliciting or obtaining the Contribution or negotiating the whole or any part of its terms."
- THE PROJECT
2.1 The Recipient shall carry out the Project in a diligent and professional manner.
2.2 This Agreement shall not be amended or assigned in whole or in part by the Recipient without the prior written consent of the Minister.
2.3 The Recipient shall implement or operate the Project in Western Canada.
- THE CONTRIBUTION
3.1 Provided the Recipient is in compliance with its obligations under this Agreement, the Minister shall provide the Recipient with a non-repayable Contribution not exceeding XXXX , calculated as detailed in the Statement of Work. Disbursements not exceeding the amount of the Contribution will be made upon the Minister's receipt of the following from the Recipient, no later than six (6) months following the Completion Date:
- one or more claims for reimbursement of the Assisted Capital Costs and the Assisted Non-Capital Costs, which the Recipient has incurred and paid, it being understood that the claim must be accompanied by such vouchers, receipts and other documentation, including progress reports, as may be requested by the Minister; and
- any other material that the Minister requests.
3.3 No payment with respect to this Agreement, will be made by the Minister subsequent to July 14, 2008 unless the Western Diversification Program Terms and Conditions are renewed or extended beyond July 14, 2008.
3.4 The maximum amount that the Minister shall pay under this Agreement is the amount of the Contribution.
3.5 The Minister shall not pay any portion of the Contribution towards any Project Costs that the Recipient incurs prior to the Start Date or after the Completion Date.
3.6 The Recipient shall make requests for payment of the required portions of the Contribution at least annually, as of the Start Date, but not more frequently than four times per year.
3.7 The Minister shall not pay any interest on the Contribution.
3.8
- For the purposes of this Agreement, total government assistance, including any tax credit related to the Project to which the Recipient is or will be entitled, shall not exceed the stacking limit indicated on the Statement of Work.
- The Recipient undertakes to inform the Minister promptly in writing of any reduction in Projects Costs or of any additional federal, provincial or municipal assistance that becomes available to the Project above the amounts set out in the Statement of Work. Should the stacking limit set out in the Statement of Work be exceeded, the Minister shall have the right to adjust the Contribution or to recover forthwith any excess assistance paid up to the total of the Contribution disbursed as a debt due Her Majesty the Queen in Right of Canada.
- RECIPIENT'S REPRESENTATIONS AND COVENANTS
4.1 The Recipient declares that any person who has been lobbying on its behalf to obtain the Contribution and who is required to be registered pursuant to the Lobbyists Registration Act was registered pursuant to such Act at the time the lobbying occurred.
The Recipient represents and warrants to the Minister that it has not, nor has any other person, corporation, or organization, directly or indirectly paid or agreed to pay, and covenants that it and they shall not directly or indirectly pay, any person to solicit this Agreement or the Contribution, for a commission, Contingency Fee or any other consideration dependent on the execution of this Agreement or the payment of the Contribution or any portion thereof.
4.2 The Recipient shall preserve and keep available, for six years after completion of the Project:
- proper books of account recording project revenues and costs,
- accounts and records that are necessary in the circumstances to support the books of account;
and - adequate administrative documentation to support the Recipient’s decisions made concerning the Project.
- inspect and assess the progress of the Project.
- examine the Recipient’s books, accounts and any other records related to the Project and the Contribution, and to make copies thereof.
4.5 The Recipient shall not dispose of, or relinquish control over, any asset utilized in the Project, including intellectual property developed or acquired as a result of carrying out the Project, during the term of this Agreement, without the prior written consent of the Minister.
4.6 The Recipient shall obtain the prior written consent of the Minister to any change that, in the sole judgement of the Minister, may materially affect the ownership, management, or financing of the Recipient during the term of this Agreement.
4.7 The Recipient shall obtain appropriate insurance coverage for the Project and shall maintain such insurance coverage in full force and effect until the Project has been completed and shall provide evidence of such insurance coverage to the Minister, at the Minister's request.
4.8 The Recipient shall obtain all necessary licenses, permits, and approvals required for the Project by applicable legislation, regulations and by-laws.
4.9 The Recipient, if directed by the Minister, shall forthwith repay to the Minister any overpayments or unexpended balances of the Contribution, and such amounts shall constitute a debt due to Her Majesty the Queen in Right of Canada.
- REPORTING
5.1 Project Reports, in a form satisfactory to the Minister, shall be submitted by the Recipient to the Minister on the following schedule:
- progress reports with every claim for payment, a minimum of twice per year,
- within 30 days of the Completion Date of the Project, a Project completion report which shall include, without limitation, the following:
- a summary of milestones completed
- the extent to which performance indicators were achieved, and
- a description of the benefits that have accrued to date.
- any financial statements or additional reports as may be requested by the Minister.
5.2 Following the Completion Date of the Project, the Recipient shall submit reports as required in accordance with the Project Measurement section of the Statement of Work.
- DEFAULT
6.1 The following constitute events of default on behalf of the Recipient:
- submitting false or misleading information to the Minister or failing to disclose relevant information which may have a negative impact on the Recipient's financial position;
- failing to satisfy a term or condition of this Agreement;
- becoming bankrupt or insolvent, going into receivership or taking the benefit of any statute from time to time in force relating to bankrupt or insolvent debtors; or
- the Recipient is dissolved or ceases to carry on business.
6.2 If an event of default occurs, the Minister may inform the Recipient, by a notice dated and in writing (the "Notice of Default"), of one or more of the following:
- that the Minister's obligation to pay the Contribution to the Recipient is hereby terminated as a result of an event of default occurring;
- that the Recipient shall repay to the Minister, all or part of the Contribution forthwith and that such an amount is a debt due to Her Majesty in Right of Canada and may be recovered as such;
- the Recipient shall transfer any assets it has acquired through the proceeds of the Contribution to a third party, as directed by the Minister; and
- the Recipient shall use its best efforts to dispose, at fair market value as determined at the sole discretion of the Minister, of any assets it has acquired through the proceeds of the Contribution and shall provide the Minister with the proceeds of such disposal, as directed by the Minister.
6.3 Unless the Recipient satisfies the Minister, within two (2) weeks of the date of the Notice of Default, that either the event of default has not occurred or that it has fully remedied the event of default, the Recipient shall be fully bound by and comply with the terms of the Notice of Default.
6.4 The Recipient shall pay, in addition to any amount due as a result of an event of default, interest on such amount, calculated from the date of the Notice of Default until the date that the full amount payable has been received by the Minister.
6.5 In accordance with the Interest and Administrative Charges Regulations under the Financial Administration Act, the rate of interest on the amount due as a result of an event of default, shall be fixed at 3 percent above the minimum rate at which the Bank of Canada is prepared to make loans as at the date of the Notice of Default.
6.6 Section 6 of this Agreement shall survive the expiration or termination of this Agreement.
- ENVIRONMENT
7.1 The Recipient represents that any environmental issues or concerns relating to the Project which are known or ought to be known to the Recipient have been disclosed to the Minister, and the Recipient shall inform the Minister of any environmental issues or concerns regarding the Project which arise during the term of this Agreement.
7.2 The Recipient shall obtain all certificates, consents, permits and approvals required for compliance with applicable legislation and shall comply with the requirements of such legislation and use its best efforts to resolve any environmental issues that may arise.
- NOTICE
8.1- Any notice or communication authorized or permitted with respect to this Agreement shall be effectively given if:
- delivered by hand;
- sent by letter; or
- sent by facsimile.
- Any notice that is delivered by hand shall be deemed to have been received on delivery. Any notice which has been mailed shall be deemed to have been received eight (8) calendar days after being mailed. Any notice sent by facsimile shall be deemed to have been received twenty-four (24) hours after the time that is printed on the dispatcher's confirmation slip.
- The Minister's address for notice shall be:
XXXXXX
Assistant Deputy Minister
Region
Department of Western Economic Diversification
Regional Address
FAX #: - The Recipient's address for notice shall be:
Client Contact and Address
FAX #: - Either the Minister or the Recipient may change the address and other information stipulated above, provided that a written change of address notice is issued to the other party.
- Any notice or communication authorized or permitted with respect to this Agreement shall be effectively given if:
- PUBLIC ANNOUNCEMENTS AND COMMUNICATIONS
9.1 The Recipient shall comply with the requirements contained in Attachment "B" concerning public announcements, placement of signs, official ceremonies, and publications including news releases and annual reports.
9.2 If applicable, in making any announcements of this Contribution, the Recipient shall comply with the spirit of the Official Languages Act. - INDEMNITY
10.1 The Recipient shall indemnify and save harmless the Minister and the Minister's representatives, successors, assigns, servants and agents against and from all actions, suits, damages, losses, charges, expenses, claims and demands whatsoever (including necessary legal costs) which may hereafter be brought or made against the Minister or which the Minister may sustain, pay or incur as the result of or in connection with or arising out of any action of the Recipient.
10.2 The Minister's liability under this Agreement shall be limited in the aggregate to a sum equal to or less than the Contribution.
10.3 Section 10 of this Agreement shall survive the termination or expiration of this Agreement. - GENERAL
11.1 This Agreement is an agreement for the Contribution only. It does not create a partnership, agency, joint venture, or employer/employee relationship between the parties and the Recipient shall not represent itself as such, including in any agreement with a third party.
11.2 No member of the House of Commons of Canada or the Senate of Canada shall be admitted to any share or part of the Agreement or to any benefit to arise therefrom.
11.3 As a condition of receiving the Contribution, the Recipient shall comply with the Conflict of Interest and Post-Employment Code for Public Office Holders and the Values and Ethics Code for the Public Service at all times during the currency of the Agreement.
11.4 This Agreement and the attachments attached hereto contain the entire agreement between the parties with respect to the subject matter hereto and shall supersede all previous negotiations, representations and documents in relation hereto made by either of the parties.
11.5 Time is to be considered of the essence of this Agreement.
11.6 All information provided by the Recipient to the Minister will be treated in accordance with the Access to Information Act and the Privacy Act. These laws govern, protect and limit the collection, use and disclosure of personal, financial and technical information by federal government departments and agencies. In addition to and notwithstanding the above, the Minister reserves the right to make information relating to this agreement available to the public, including providing limited information on a public website as part of a list of all projects funded by the Minister. The Recipient hereby represents that they have authority to consent and consents to the information being made available to the public.
This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument and shall be effective as of the formal date hereof.
IN WITNESS WHEREOF this Agreement has been executed by the parties by their duly authorized officers
this day of , 200 .
For the Minister of
Western Economic Diversification
ATTACHMENT "A"
Statement of Work
- PROJECT SCOPE
- Description
- Project Location
- Project Costs
The above costs include only Project Costs, as set out above, incurred directly to carry out the Project and are subject to verification as direct amounts for which payments to third parties can be proven. - Cashflow
The amounts to be paid by the Minister shall not exceed the following amounts in the Minister's fiscal years ending March 31: - Special Conditions
- Dates
- Start Date -
- Completion Date -
- Cancellation Date -
- Final Client Reporting Date -
- Stacking Limit and Funding
- PROJECT MEASUREMENT
This section describes the basis for measuring the progress, outcomes and success of the Project. Reporting by the Recipient shall reflect these parameters.
- Timeline of Project Activity
- Methodology & Timing
The Recipient shall continue to provide information and reports with respect to the Performance Indicators, as requested by the Minister, until the Final Client Reporting Date.
ATTACHMENT "B"
COMMUNICATIONS
-
- The Recipient hereby consents to a public announcement by or on behalf of the Minister in the form of a news release, or news conference.
- The Minister will inform the Recipient promptly in writing of the date on which the public announcement is to be made, and the Recipient shall maintain the confidentiality of this Agreement until such date.
-
- The Recipient shall advise the Minister in writing, at least fourteen (14) days in advance, of any official ceremony to be held in connection with the Project.
- The Recipient hereby consents to the participation by the Minister, or a representative of the Minister, at any such official ceremony and to have the ceremony take place on a day mutually agreed upon by the Recipient and the Minister. The Recipient also consents to the placement by the Minister of a sign concerning the federal government participation in the Project on the site of the Project at any time prior to completion of the Project, if recommended by the Minister.
- The Recipient shall, in all of its publications, news releases and presentations regarding the Project, or making mention thereof, including its annual reports, acknowledge if recommended by the Minister, that the Project was assisted by Western Economic Diversification and the other participating government agencies. Any such use of Western Economic Diversification's name or its logos requires the prior written approval of the Minister.
- The Recipient will provide the Minister with milestone information which will be used by the Minister to promote the Recipient's Project. Further, the Recipient agrees to the implementation of appropriate communication's activities, which the Minister or the Recipient may initiate, such as feature story, official opening, ceremonies, celebrations. The Minister and the Recipient will cooperate in these activities.
Examples of milestones for promotional purposes include:
- new contracts
- awards
- completion of prototype
- first product produced
- penetration of new markets
- significant sales
- first shipment or launch of new product, new technology