The information in this document applies to the Ontario Creates funds and programs listed below. It is considered an integral part of the program guidelines and it is expected that applicants will review this document thoroughly along with the program-specific guidelines in advance of submitting an application:
- Book Fund
- Interactive Digital Media Fund (All Programs)
- Magazine Fund
- Global Market Development – Book
- Global Market Development – Film and Television
- Industry Development
- Film Fund – Marketing and Distribution Initiative
1. Definitions and General Policies \1
2. Application Submission \4
3. Successful Applicants \6
4. Project Delivery \7
5. Appendix 1: Agreement Template \9
1. Definitions and General Policies
Ontario-based - have a principal place of business* in Ontario which serves as head office and base of operations. The applicant must meet the following:
- applicant must be eligible to pay corporate income taxes in Ontario
- Ontario address is listed as head office in T2 filing; and,
- Ontario address must be a stable and non-temporary establishment where the applicant can demonstrate that the location is under the corporation’s control and the space can be objectively identified with the corporation. For example:
- maintenance of an office for which the corporation pays rent or compensates employees
- presence of office equipment
- the place of business is listed as the corporation’s residential address in the telephone directory
- substantial quantities of the corporation’s goods are kept on the property
- residents or employees of the corporation working at the property devote all their working hours to the corporation’s interests
- substantial usage of owned/rented machinery or equipment that is used to carry out the corporation’s business
* The corporation’s principal place of business will be determined at the discretion of Ontario Creates and additional documentation may be requested as required. For this purpose, a principal place of business is not a post-office box or fixed address of a friend or relative not directly employed by the company.
If the applicant is a successful funding recipient, the applicant must continue to have a principal place of business in Ontario for the duration of Ontario Creates’ agreement.
Canadian-owned - as defined in the Investment Canada Act (Canada) and is Canadian-controlled as determined for the purposes of sections 26 to 28 of the Investment Canada Act.
Ontario Expenditure - Ontario expenditures include goods or services provided by Ontario-based individuals or corporations in the course of carrying on their businesses at their principal place of business in Ontario.
Ontario Resident – a person who has lived in the province 200 of the last 365 days and has filed their last tax return in Ontario.
- Respectful Workplace - Ontario Creates is committed to fostering respectful workplaces in all sectors and companies we support. A respectful workplace is one that values diversity and inclusion, dignity, courteous conduct, fairness, positive communication and professional working relationships. A respectful workplace is free from harassment and discrimination including sexual harassment.
- Cultivate and sustain a respectful, positive, inclusive and supportive work culture
- Promote awareness of rights and responsibilities
- Prevent, identify and eliminate workplace harassment and discrimination in a timely manner
- Improve and/or restore Ontario Creates’ work environment and relationships affected by incidents or allegations of workplace harassment or discrimination, including those involving external stakeholders
- Cultivate and sustain a respectful, positive, inclusive and supportive work culture
- Provide a safe mechanism for staff to report incidents or allegations of inappropriate behavior
- Take action to prevent, identify and eliminate workplace harassment and discrimination in a timely manner
- Accessibility - Ontario Creates welcomes applications from people with disabilities, people who are deaf, and people who have barriers to accessing technology. If you would like to request an alternative process or format for submitting an application, or request funds (up to $500 per application) towards service providers to assist with your application, please contact the relevant Program Consultant a minimum of four weeks before the deadline. Support for application assistance is also available to First Nations, Inuit or Métis applicants facing language, geographic and/or cultural barriers. Services may include, but are not limited to, assistance to create an account and navigate the Online Application Portal; transcribe/edit/organize/translate application materials; complete and submit application materials.
- Sustainability - Ontario Creates encourages all Applicants to implement environmentally-sustainable practices and cleaner technologies – and reduce the use of unsustainable resources – in the development, production and exploitation of their Projects.
- Financial Statements - Financial Statements for the two most recently completed fiscal years must be submitted with your application:.
- A minimum of compilation engagement report or Notice-to-Reader financial statements will be accepted for projects requesting $150,000 or less. Compilation engagement report or Notice-to-Reader financial statements must be prepared and signed by an accountant who is a member in good standing of a provincial branch of the Chartered Professional Accountants (CPA).
- Review engagement or audited financial statements are required for requests of more than $150,000, and must be conducted by an independent public accountant who is a member in good standing of a provincial branch of the Chartered Professional Accountants (CPA).
- Financial statements are not required for requests of $15,000 or less.
- Financial statements must be current and dated within six months of the applicant’s most recent fiscal year-end.
- Exceptions may be considered for companies with less than two years of operations. Companies in this situation should contact Ontario Creates in advance of the deadline.
- Application Form: Ontario Expenditures – applicants are required to indicate the total expenditures paid to Ontario residents for labour that is directly attributable to the project, and Total Ontario expenditures, excluding labour, that are directly attributable to the project.
- Application Form: Funding from Other Sources – applicants are required to report the total unregulated private sector project funding (financing that is not influenced by government regulation) such as internal revenues, venture capital investment, sponsorship, loans, distribution fees, and the total public sector funding (Federal, provincial, and/or municipal government funding and tax credits).
- FIPPA - Subject to the Freedom of Information and Protection of Privacy Act (FIPPA), all information contained in the application will remain strictly confidential.
- Communication - Ontario Creates reserves the right to alter program guidelines with general public notice to all potential applicants and to refuse any application for any reason. All inquiries pertaining to Ontario Creates Funds are to be directed to Ontario Creates staff only.
- Final Decisions - All Ontario Creates decisions are final. The number of awards and amount awarded is contingent on confirmation of Ontario Creates’ annual budget. Ontario Creates is not required to make any minimum number of awards.
3. Successful Applicants
Agreement - On acceptance into the program, the recipient company will be required to sign a standard Ontario Transfer Payment Agreement covering the terms of their participation in the program including providing Ontario Creates with permission to use the project and delivery materials for promotional purposes. A copy of this agreement is attached for review in Section 5: Appendix 1 below. Recipients may not amend the agreement template.
Accessibility – Successful applicants who are deaf or otherwise disabled may be eligible for supplementary funds for accessibility expenses required to complete their project deliverables.
Release of Project Info – Ontario Creates is required to provide a list of funding recipients to the Ministry of Tourism and Culture and Sport and to disclose funding information on the Ontario Creates website. Information provided may include but is not limited to company, project title/description and amount of funding.
Insurance - Recipient companies will be required to carry Commercial General Liability Insurance on an occurrence basis for Third Party Bodily Injury, Personal Injury and Property Damage, to an inclusive limit of not less than $2,000,000 per occurrence, $2,000,000 products and completed operations aggregate. Ontario Creates and His Majesty the King need to be named as additional insureds on all policies. Please budget accordingly. Additional information on insurance requirements is available upon request.
Credit - Ontario Creates support is to be acknowledged with an Ontario Creates credit and logo on the project and all related publicity and promotional materials. Ontario Creates is to be advised in advance of any mention of Ontario Creates or Ontario Creates’ involvement in the project in media releases, publicity materials or social media. The Ontario Creates logo is available here: https://www.ontariocreates.ca/...
Changes to the Project - Ontario Creates must be notified of any significant changes to the project as defined in the contract and if applicable, changes will require consent of Ontario Creates.
Interim Reports - Successful applicants will prepare written interim reports on the progress of their project. Participants will also be required to provide feedback on the process, business and/or content development benefits and other outcomes in order for Ontario Creates to evaluate the program.
4. Project Delivery
· Deliverables - The agreement with Ontario Creates will outline specific deliverables including, but not limited to: a cost report, copies of the project, marketing materials and an assessment of the program. Since project-related deliverables will vary, certain delivery requirements will be negotiated on a case-by-case basis at contract signing. Participants will also be required to provide feedback on the process, business and/or content development benefits and other outcomes in order for Ontario Creates to evaluate the program.
- Cost Report - A Final Cost Report and Financing Statement is required for all projects supported by Ontario Creates.
- o Successful applicants awarded more than $150,000 must have the Final Cost Report audited by a licensed public accountant.
o Successful applicants awarded $150,000 or less must have a duly authorized notarized affidavit attesting to the true and fair representation of the Final Cost Report.
Upon request, copies of invoices and proofs of payments must be submitted.
· Audit and Review Engagement Requirements:
- The auditor must be a member in good standing with its Provincial Institute/Order or Association, have any provincial licenses required to conduct an audit in the province where the engagement will take place, and must be independent of the application corporation.
- The auditor’s report must be addressed to the party that has engaged the auditor, that is, to the directors or shareholders of the applicant corporation.
- The audit must be performed in accordance with Canadian Generally Accepted Auditing Standards.
- The cost report must be prepared in accordance with the Generally Accepted Accounting Principles (GAAP) that are published in the CPA Canada Handbook.
- The reports must include:
- A summary of all related party transactions as well as all payments made to the producer and/or related parties;
- A declaration of non-Ontario labour or services; and
- A summary of any unpaid amounts and deferrals
- The auditor conducting the audit of the Final Cost Report should ensure that they have read and understood the requirements of the relevant program's guidelines before undertaking their reports. Special attention should be paid to the expense and financing categories which have maximum allowable caps.
- The company submitting the final cost report is responsible for ensuring that the certified independent accountant who is undertaking the audit or review engagement is aware of the relevant program policies.
The policy of Ontario Creates is to take every reasonable step to:
Ontario Creates expects that all funding recipients maintain the principles of a
respectful workplace including taking every reasonable step to:
An eligibility requirement for Ontario Creates programs includes the applicant organization confirming that their interactions with Ontario Creates staff will adhere to Ontario Creates’ respectful workplace policies and that they have in place both guiding principles and a process for maintaining a respectful workplace. Please download the Applicant Affidavit from the Ontario Creates website or from the application form in the OAP, sign, and include with your application as instructed.
Diversity - Ontario Creates values and supports diversity and gender parity at all levels and business roles within creative industries. We acknowledge that many communities continue to face systemic barriers, preventing them from participating meaningfully in these industries. Ontario Creates applies a lens of diversity, equity, and inclusion to the evaluation criteria for this program, and directs jury members to do the same. Applicants proposing projects/activities that support, reflect, and strengthen diversity and gender parity in Ontario are expected to tangibly demonstrate a genuine and sustained commitment to these equity-deserving communities*. Ontario Creates encourages applications from companies that are led by BIPOC (Black, Indigenous, or People of Colour) or Francophone individuals and applicants that otherwise meaningfully meet the provincial definition of diversity**.
Program applicants are encouraged to respect the guiding principles and best practices set out in the On-Screen Protocols & Pathways Media Production Guide and the Black Screen Office Being Seen Report.
* Equity-deserving communities are those that face significant collective challenges in participating in society. This marginalization may be caused by, but not limited to, attitudinal, historic, social and environmental barriers based on age, ethnicity, disability, economic status, gender, nationality, race, sexual orientation and transgender status. Equity-deserving communities identify barriers to equal access, opportunities and resources due to disadvantage and discrimination and actively seek social justice and reparation.
** The provincial definition of diversity states: the dimensions of diversity include, but are not limited to: ancestry, culture, ethnicity, gender identity, gender expression, language, physical and intellectual ability, race, religion (creed), sex, sexual orientation and socio-economic status.
Ontario Creates encourages applicants who host event-based activities to choose accessible venues and offer accommodations for people with disabilities as required. More information on the Accessibility for Ontarians with Disabilities Act can be found here https://www.ontario.ca/laws/statute/05a11.
For Screen Producers:
Ontario Green Screen, led by Ontario Creates is your one stop resource to help implement sustainable practices into your projects. OGS provides free Climate & Sustainable Production training, and Carbon Calculator training for the albert calculation tool. They also offer a wide variety of tools and resources including green vendors resource list, grid-tie in map and handy best practices resource sheets to help make the transition to a green industry. Visit www.ontariogreenscreen.ca to find out more.
Are you interested in taking steps towards sustainable production but don’t know where to start? Check out CBC’s Sustainability Plan to help you move towards a greener production. For general inquires about how OGS can help support you, reach out to OGSinfo@ontariocreates.ca
2. Application Submission
· Online Application Portal - All applications must be submitted electronically through the Online Application Portal (OAP) at https://apply.ontariocreates.ca/.
Applicants that do not have a user account on OAP, should go to https://apply.ontariocreates.ca/ and click on “Register”. For assistance, please see Ontario Creates’ website for the “OAP Quick Start Guide”.
Applicants that are already registered will see the relevant Ontario Creates program deadline in their dashboard. To start the application, click on “Start New Application” and follow the directions to access the application form. For technical assistance, please contact the OAP Helpdesk at firstname.lastname@example.org.
For fiscal year ends 2020 and earlier, Ontario Creates will accept at minimum compilation engagement report or Notice-to-Reader financial statements prepared and signed by an accountant who is a member in good standing of a provincial branch of the Chartered Professional Accountants (CPA).
Application Form: FTEs – applicants must indicate the number of Full-Time Equivalent (FTE) positions that will be created and/or retained as a result of the Ontario Creates-supported activity/activities and funding.
5. Appendix 1: Agreement template
ONTARIO TRANSFER PAYMENT AGREEMENT
THE AGREEMENT is effective as of the ______ day of ____________, 20___
B E T W E E N :
Ontario Media Development Corporation
- and -
[enter the full legal name of the Recipient]
In consideration of the mutual covenants and agreements contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are expressly acknowledged, the Province and the Recipient agree as follows:
1.0 ENTIRE AGREEMENT
1.1 The agreement, together with:
Schedule “A” - General Terms and Conditions
Schedule “B” - Project Specific Information and Additional Provisions
Schedule “C” - Project
Schedule “D” - Budget
Schedule “E” - Payment Plan
Schedule “F” - Reports, and
any amending agreement entered into as provided for in section 4.1,
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.
2.0CONFLICT OR INCONSISTENCY
2.1 Conflict or Inconsistency. In the event of a conflict or inconsistency between the Additional Provisions and the provisions in Schedule “A”, the following rules will apply:
(a) the Parties will interpret any Additional Provisions in so far as possible, in a way that preserves the intention of the Parties as expressed in Schedule “A”; and
(b) where it is not possible to interpret the Additional Provisions in a way that is consistent with the provisions in Schedule “A”, the Additional Provisions will prevail over the provisions in Schedule “A” to the extent of the inconsistency.
3.1 The Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
4.0 AMENDING THE AGREEMENT
4.1 The Agreement may only be amended by a written agreement duly executed by the Parties.
5.1 The Recipient acknowledges that:
(a) by receiving Funds it may become subject to legislation applicable to organizations that receive funding from the Government of Ontario, including the Broader Public Sector Accountability Act, 2010 (Ontario), the Public Sector Salary Disclosure Act, 1996 (Ontario), and the Auditor General Act (Ontario);
(b) His Majesty the King in right of Ontario has issued expenses, perquisites, and procurement directives and guidelines pursuant to the Broader Public Sector Accountability Act, 2010 (Ontario);
(c) the Funds are:
(i) to assist the Recipient to carry out the Project and not to provide goods or services to the Province;
(ii) funding for the purposes of the Public Sector Salary Disclosure Act, 1996 (Ontario);
(d) the Province is not responsible for carrying out the Project; and
(e) the Province is bound by the Freedom of Information and Protection of Privacy Act (Ontario) and that any information provided to the Province in connection with the Project or otherwise in connection with the Agreement may be subject to disclosure in accordance with that Act.
- SIGNATURE PAGE FOLLOWS –
The Parties have executed the Agreement on the dates set out below.
Ontario Media Development Corporation
[enter the full legal name of the Recipient]
I have authority to bind the Recipient.
GENERAL TERMS AND CONDITIONS
A1.0 INTERPRETATION AND DEFINITIONS
A1.1 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 headings do not form part of the Agreement; they are for reference only and will not affect the interpretation of the Agreement;
(d) any reference to dollars or currency will be in Canadian dollars and currency; and
(e) “include”, “includes” and “including” denote that the subsequent list is not exhaustive.
A1.2 Definitions. In the Agreement, the following terms will have the following meanings:
“Additional Provisions” means the terms and conditions set out in Schedule “B”.
“Agreement” means this agreement entered into between the Province and the Recipient, all of the schedules listed in section 1.1, and any amending agreement entered into pursuant to section 4.1.
“Budget” means the budget attached to the Agreement as Schedule “D”.
“Business Day” means any working day, Monday to Friday inclusive, excluding statutory and other holidays, namely: New Year’s Day; Family Day; Good Friday; Easter Monday; Victoria Day; Canada Day; Civic Holiday; Labour Day; Thanksgiving Day; Remembrance Day; Christmas Day; Boxing Day and any other day on which the Province has elected to be closed for business.
“Effective Date” means the date set out at the top of the Agreement.
“Event of Default” has the meaning ascribed to it in section A13.1.
“Expiry Date” means the expiry date set out in Schedule “B”.
“Funding Year” means:
(a) in the case of the first Funding Year, the period commencing on the Effective Date and ending on the following March 31; and
(b) in the case of Funding Years subsequent to the first Funding Year, the period commencing on April 1 following the end of the previous Funding Year and ending on the following March 31.
“Funds” means the money the Province provides to the Recipient pursuant to the Agreement.
“Indemnified Parties” means His Majesty the King in right of Ontario, His ministers, agents, appointees, and employees.
“Maximum Funds” means the maximum Funds set out in Schedule “B”.
“Notice” means any communication given or required to be given pursuant to the Agreement.
“Notice Period” means the period of time within which the Recipient is required to remedy an Event of Default pursuant to section A13.3(b), and includes any such period or periods of time by which the Province extends that time in accordance with section A13.4.
“Parties” means the Province and the Recipient.
“Party” means either the Province or the Recipient.
“Project” means the undertaking described in Schedule “C”.
“Reports” means the reports described in Schedule “F”.
A2.0 REPRESENTATIONS, WARRANTIES, AND COVENANTS
A2.1 General. The Recipient represents, warrants, and covenants that:
(a) it is, and will continue to be, a validly existing legal entity with full power to fulfill its obligations under the Agreement;
(b) it has, and will continue to have, the experience and expertise necessary to carry out the Project;
(c) it is in compliance with, and will continue to comply with, all federal and provincial laws and regulations, all municipal by-laws, and any other orders, rules, and by-laws related to any aspect of the Project, the Funds, or both; and
(d) unless otherwise provided for in the Agreement, any information the Recipient provided to the Province in support of its request for funds (including information relating to any eligibility requirements) was true and complete at the time the Recipient provided it and will continue to be true and complete.
A2.2 Execution of Agreement. The Recipient represents and warrants that it has:
(a) the full power and authority to enter into the Agreement; and
(b) taken all necessary actions to authorize the execution of the Agreement.
A2.3 Governance. The Recipient represents, warrants, and covenants that it has, will maintain in writing, and will follow:
(a) a code of conduct and ethical responsibilities for all persons at all levels of the Recipient’s organization;
(b) procedures to enable the Recipient’s ongoing effective functioning;
(c) decision-making mechanisms for the Recipient;
(d) procedures to enable the Recipient to manage Funds prudently and effectively;
(e) procedures to enable the Recipient to complete the Project successfully;
(f) procedures to enable the Recipient to identify risks to the completion of the Project and strategies to address the identified risks, all in a timely manner;
(g) procedures to enable the preparation and submission of all Reports required pursuant to Article A7.0; and
(h) procedures to enable the Recipient to address such other matters as the Recipient considers necessary to enable the Recipient to carry out its obligations under the Agreement.
A2.4 Supporting Proof. Upon the request of the Province, the Recipient will provide the Province with proof of the matters referred to in Article A2.0.
A3.0 TERM OF THE AGREEMENT
A3.1 Term. The term of the Agreement will commence on the Effective Date and will expire on the Expiry Date unless terminated earlier pursuant to Article A11.0, Article A12.0, or Article A13.0.
A4.0 FUNDS AND CARRYING OUT THE PROJECT
A4.1 Funds Provided. The Province will:
(a) provide the Recipient up to the Maximum Funds for the purpose of carrying out the Project;
(b) provide the Funds to the Recipient in accordance with the payment plan attached to the Agreement as Schedule “E”; and
(c) deposit the Funds into an account designated by the Recipient provided that the account:
(i) resides at a Canadian financial institution; and
(ii) is in the name of the Recipient.
A4.2 Limitation on Payment of Funds. Despite section A4.1:
(a) the Province is not obligated to provide any Funds to the Recipient until the Recipient provides the certificates of insurance or other proof as the Province may request pursuant to section A10.2;
(b) the Province is not obligated to provide instalments of Funds until it is satisfied with the progress of the Project;
(c) the Province may adjust the amount of Funds it provides to the Recipient in any Funding Year based upon the Province’s assessment of the information the Recipient provides to the Province pursuant to section A7.1; or
(d) if, pursuant to the Financial Administration Act (Ontario), the Province does not receive the necessary appropriation from the Ontario Legislature for payment under the Agreement, the Province is not obligated to make any such payment, and, as a consequence, the Province may:
(i) reduce the amount of Funds and, in consultation with the Recipient, change the Project; or
(ii) terminate the Agreement pursuant to section A12.1.
A4.3 Use of Funds and Carry Out the Project. The Recipient will do all of the following:
(a) carry out the Project in accordance with the Agreement;
(b) use the Funds only for the purpose of carrying out the Project;
(c) spend the Funds only in accordance with the Budget;
(d) not use the Funds to cover any cost that has or will be funded or reimbursed by one or more of any third party, ministry, agency, or organization of the Government of Ontario.
A4.4 Interest Bearing Account. If the Province provides Funds before the Recipient’s immediate need for the Funds, the Recipient will place the Funds in an interest bearing account in the name of the Recipient at a Canadian financial institution.
A4.5 Interest. If the Recipient earns any interest on the Funds, the Province may:
(a) deduct an amount equal to the interest from any further instalments of Funds; or
(b) demand from the Recipient the payment of an amount equal to the interest.
A4.6 Rebates, Credits, and Refunds. The Ministry will calculate Funds based on the actual costs to the Recipient to carry out the Project, less any costs (including taxes) for which the Recipient has received, will receive, or is eligible to receive, a rebate, credit, or refund.
A5.0 RECIPIENT’S ACQUISITION OF GOODS OR SERVICES, AND DISPOSAL OF ASSETS
A5.1 Acquisition. If the Recipient acquires goods, services, or both with the Funds,
(a) do so through a process that promotes the best value for money; and
(b) comply with the Broader Public Sector Accountability Act, 2010 (Ontario), including any procurement directive issued thereunder, to the extent applicable.
A5.2 Disposal. The Recipient will not, without the Province’s prior written consent, sell, lease, or otherwise dispose of any asset purchased or created with the Funds or for which Funds were provided, the cost of which exceeded the amount as provided for in Schedule “B” at the time of purchase.
A6.0 CONFLICT OF INTEREST
A6.1 No Conflict of Interest. The Recipient will carry out the Project and use the Funds without an actual, potential, or perceived conflict of interest.
A6.2 Conflict of Interest Includes. For the purposes of Article A6.0, a conflict of interest includes any circumstances where:
(a) the Recipient; or
(b) any person who has the capacity to influence the Recipient’s decisions,
has outside commitments, relationships, or financial interests that could, or could be seen to, interfere with the Recipient’s objective, unbiased, and impartial judgment relating to the Project, the use of the Funds, or both.
A6.3 Disclosure to Province. The Recipient will:
(a) disclose to the Province, without delay, any situation that a reasonable person would interpret as an actual, potential, or perceived conflict of interest; and
(b) comply with any terms and conditions that the Province may prescribe as a result of the disclosure.
A7.0 REPORTS, ACCOUNTING, AND REVIEW
A7.1 Preparation and Submission. The Recipient will:
(a) submit to the Province at the address referred to in section A17.1, all Reports in accordance with the timelines and content requirements as provided for in Schedule “F”, or in a form as specified by the Province from time to time;
(b) submit to the Province at the address referred to in section A17.1, any other reports as may be requested by the Province in accordance with the timelines and content requirements specified by the Province;
(c) ensure that all Reports and other reports are completed to the satisfaction of the Province; and
(d) ensure that all Reports and other reports are signed on behalf of the Recipient by an authorized signing officer.
A7.2 Record Maintenance. The Recipient will keep and maintain:
(a) all financial records (including invoices) relating to the Funds or otherwise to the Project in a manner consistent with generally accepted accounting principles; and
(b) all non-financial documents and records relating to the Funds or otherwise to the Project.
A7.3 Inspection. The Province, any authorized representative, or any independent auditor identified by the Province may, at the Province’s 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 Project and the Recipient’s allocation and expenditure of the Funds and, for these purposes, the Province, any authorized representative, or any independent auditor identified by the Province may take one or more of the following actions:
(a) inspect and copy the records and documents referred to in section A7.2;
(b) remove any copies made pursuant to section A7.3(a) from the Recipient’s premises; and
(c) conduct an audit or investigation of the Recipient in respect of the expenditure of the Funds, the Project, or both.
A7.4 Disclosure. To assist in respect of the rights provided for in section A7.3, the Recipient will disclose any information requested by the Province, any authorized representatives, or any independent auditor identified by the Province, and will do so in the form requested by the Province, any authorized representative, or any independent auditor identified by the Province, as the case may be.
A7.5 No Control of Records. No provision of the Agreement will be construed so as to give the Province any control whatsoever over the Recipient’s records.
A7.6 Auditor General. The Province’s rights under Article A7.0 are in addition to any rights provided to the Auditor General pursuant to section 9.1 of the Auditor General Act (Ontario).
A8.0 COMMUNICATIONS REQUIREMENTS
A8.1 Acknowledge Support. Unless otherwise directed by the Province, the Recipient will:
(a) acknowledge the support of the Province for the Project; and
(b) ensure that the acknowledgement referred to in section A8.1(a) is in a form and manner as directed by the Province.
A8.2 Publication. The Recipient will indicate, in any of its Project-related publications, whether written, oral, or visual, that the views expressed in the publication are the views of the Recipient and do not necessarily reflect those of the Province.
A9.1 Indemnification. The Recipient will 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 Project or otherwise in connection with the Agreement, unless solely caused by the negligence or wilful misconduct of the Indemnified Parties.
A10.1 Recipient’s Insurance. The Recipient represents, warrants, and covenants that it has, and will maintain, at its own cost and expense, with insurers having a secure A.M. Best rating of B+ or greater, or the equivalent, all the necessary and appropriate insurance that a prudent person carrying out a project similar to the Project would maintain, including commercial general liability insurance on an occurrence basis for third party bodily injury, personal injury, and property damage, to an inclusive limit of not less than the amount provided for in Schedule “B” per occurrence. The insurance policy will include the following:
(a) the Indemnified Parties as additional insureds with respect to liability arising in the course of performance of the Recipient’s obligations under, or otherwise in connection with, the Agreement;
(b) a cross-liability clause;
(c) contractual liability coverage; and
(d) a 30-day written notice of cancellation.
A10.2 Proof of Insurance. The Recipient will:
(a) provide to the Province, either:
(i) certificates of insurance that confirm the insurance coverage as provided for in section A10.1; or
(ii) other proof that confirms the insurance coverage as provided for in section A10.1; and
(b) upon the request of the Province, provide to the Province a copy of any insurance policy.
A11.0 TERMINATION ON NOTICE
A11.1 Termination on Notice. The Province may terminate the Agreement at any time without liability, penalty, or costs upon giving at least 30 days’ Notice to the Recipient.
A11.2 Consequences of Termination on Notice by the Province. If the Province terminates the Agreement pursuant to section A11.1, the Province may take one or more of the following actions:
(a) cancel further instalments of Funds;
(b) demand from the Recipient the payment of any Funds remaining in the possession or under the control of the Recipient; and
(c) determine the reasonable costs for the Recipient to wind down the Project, and do either or both of the following:
(i) permit the Recipient to offset such costs against the amount the Recipient owes pursuant to section A11.2(b); and
(ii) subject to section A4.1(a), provide Funds to the Recipient to cover such costs.
A12.0 TERMINATION WHERE NO APPROPRIATION
A12.1 Termination Where No Appropriation. If, as provided for in section A4.2(d), the Province does not receive the necessary appropriation from the Ontario Legislature for any payment the Province is to make pursuant to the Agreement, the Province may terminate the Agreement immediately without liability, penalty, or costs by giving Notice to the Recipient.
A12.2 Consequences of Termination Where No Appropriation. If the Province terminates the Agreement pursuant to section A12.1, the Province may take one or more of the following actions:
(a) cancel further instalments of Funds;
(b) demand from the Recipient the payment of any Funds remaining in the possession or under the control of the Recipient; and
(c) determine the reasonable costs for the Recipient to wind down the Project and permit the Recipient to offset such costs against the amount owing pursuant to section A12.2(b).
A12.3 No Additional Funds. If, pursuant to section A12.2(c), the Province determines that the costs to wind down the Project exceed the Funds remaining in the possession or under the control of the Recipient, the Province will not provide additional Funds to the Recipient.
A13.0 EVENT OF DEFAULT, CORRECTIVE ACTION, AND TERMINATION FOR DEFAULT
A13.1 Events of Default. Each of the following events will constitute an Event of Default:
(a) in the opinion of the Province, the Recipient breaches any representation, warranty, covenant, or other material term of the Agreement, including failing to do any of the following in accordance with the terms and conditions of the Agreement:
(i) carry out the Project;
(ii) use or spend Funds; or
(iii) provide, in accordance with section A7.1, Reports or such other reports as may have been requested pursuant to section A7.1(b);
(b) the Recipient’s operations, its financial condition, or its organizational structure, changes such that it no longer meets one or more of the eligibility requirements of the program under which the Province provides the Funds;
(c) the Recipient makes an assignment, proposal, compromise, or arrangement for the benefit of creditors, or a creditor makes an application for an order adjudging the Recipient bankrupt, or applies for the appointment of a receiver; or
(d) the Recipient ceases to operate.
A13.2 Consequences of Events of Default and Corrective Action. If an Event of Default occurs, the Province may, at any time, take one or more of the following actions:
(a) initiate any action the Province considers necessary in order to facilitate the successful continuation or completion of the Project;
(b) provide the Recipient with an opportunity to remedy the Event of Default;
(c) suspend the payment of Funds for such period as the Province determines appropriate;
(d) reduce the amount of the Funds;
(e) cancel further instalments of Funds;
(f) demand from the Recipient the payment of any Funds remaining in the possession or under the control of the Recipient;
(g) demand from the Recipient the payment of an amount equal to any Funds the Recipient used, but did not use in accordance with the Agreement;
(h) demand from the Recipient the payment of an amount equal to any Funds the Province provided to the Recipient; and
(i) terminate the Agreement at any time, including immediately, without liability, penalty or costs to the Province upon giving Notice to the Recipient.
A13.3 Opportunity to Remedy. If, in accordance with section A13.2(b), the Province provides the Recipient with an opportunity to remedy the Event of Default, the Province will give Notice to the Recipient of:
(a) the particulars of the Event of Default; and
(b) the Notice Period.
A13.4 Recipient not Remedying. If the Province provided the Recipient with an opportunity to remedy the Event of Default pursuant to section A13.2(b), and:
(a) the Recipient does not remedy the Event of Default within the Notice Period;
(b) it becomes apparent to the Province that the Recipient cannot completely remedy the Event of Default within the Notice Period; or
(c) the Recipient is not proceeding to remedy the Event of Default in a way that is satisfactory to the Province,
the Province may extend the Notice Period, or initiate any one or more of the actions provided for in sections A13.2(a), (c), (d), (e), (f), (g), (h), and (i).
A13.5 When Termination Effective. Termination under Article will take effect as provided for in the Notice.
A14.0 FUNDS AT THE END OF A FUNDING YEAR
A14.1 Funds at the End of a Funding Year. Without limiting any rights of the Province under Article A13.0, if the Recipient has not spent all of the Funds allocated for the Funding Year as provided for in the Budget, the Province may take one or both of the following actions:
(a) demand from the Recipient payment of the unspent Funds; and
(b) adjust the amount of any further instalments of Funds accordingly.
A15.0 FUNDS UPON EXPIRY
A15.1 Funds Upon Expiry. The Recipient will, upon expiry of the Agreement, pay to the Province any Funds remaining in its possession or under its control.
A16.0 DEBT DUE AND PAYMENT
A16.1 Payment of Overpayment. If at any time the Province provides Funds in excess of the amount to which the Recipient is entitled under the Agreement, the Province may:
(a) deduct an amount equal to the excess Funds from any further instalments of Funds; or
(b) demand that the Recipient pay an amount equal to the excess Funds to the Province.
A16.2 Debt Due. If, pursuant to the Agreement:
(a) the Province demands from the Recipient the payment of any Funds or an amount equal to any Funds; or
(b) the Recipient owes any Funds or an amount equal to any Funds to the Province, whether or not the Province has demanded their payment,
such Funds or other amount will be deemed to be a debt due and owing to the Province by the Recipient, and the Recipient will pay the amount to the Province immediately, unless the Province directs otherwise.
A16.3 Interest Rate. The Province may charge the Recipient interest on any money owing by the Recipient at the then current interest rate charged by the Province of Ontario on accounts receivable.
A16.4 Payment of Money to Province. The Recipient will pay any money owing to the Province by cheque payable to the “Ontario Minister of Finance” and delivered to the Province as provided for in Schedule “B".
A16.5 Fails to Pay. Without limiting the application of section 43 of the Financial Administration Act (Ontario), if the Recipient fails to pay any amount owing under the Agreement, His Majesty the King in right of Ontario may deduct any unpaid amount from any money payable to the Recipient by His Majesty the King in right of Ontario.
A17.1 Notice in Writing and Addressed. Notice will be in writing and will be delivered by email, postage-prepaid mail, personal delivery, or fax, and will be addressed to the Province and the Recipient respectively as provided for Schedule “B”, or as either Party later designates to the other by Notice.
A17.2 Notice Given. Notice will be deemed to have been given:
(a) in the case of postage-prepaid mail, five Business Days after the Notice is mailed; or
(b) in the case of email, personal delivery, or fax, one Business Day after the Notice is delivered.
A17.3 Postal Disruption. Despite section A17.2(a), in the event of a postal disruption:
(a) Notice by postage-prepaid mail will not be deemed to be given; and
(b) the Party giving Notice will give Notice by email, personal delivery, or fax.
A18.0 CONSENT BY PROVINCE AND COMPLIANCE BY RECIPIENT
A18.1 Consent. When the Province provides its consent pursuant to the Agreement, it may impose any terms and conditions on such consent and the Recipient will comply with such terms and conditions.
A19.0 SEVERABILITY OF PROVISIONS
A19.1 Invalidity or Unenforceability of Any Provision. The invalidity or unenforceability of any provision of the Agreement will not affect the validity or enforceability of any other provision of the Agreement. Any invalid or unenforceable provision will be deemed to be severed.
A20.1 Waiver Request. Either Party may, in accordance with the Notice provision set out in Article A17.0, ask the other Party to waive an obligation under the Agreement.
A20.2 Waiver Applies. Any waiver a Party grants in response to a request made pursuant to section A20.1 will:
(a) be valid only if the Party granting the waiver provides it in writing; and
(b) apply only to the specific obligation referred to in the waiver.
A21.0 INDEPENDENT PARTIES
A21.1 Parties Independent. The Recipient is not an agent, joint venturer, partner, or employee of the Province, and the Recipient will not represent itself in any way that might be taken by a reasonable person to suggest that it is, or take any actions that could establish or imply such a relationship.
A22.0 ASSIGNMENT OF AGREEMENT OR FUNDS
A22.1 No Assignment. The Recipient will not, without the prior written consent of the Province, assign any of its rights or obligations under the Agreement.
A22.2 Agreement Binding. All rights and obligations contained in the Agreement will extend to and be binding on the Parties’ respective heirs, executors, administrators, successors, and permitted assigns.
A23.0 GOVERNING LAW
A23.1 Governing Law. The Agreement and the rights, obligations, and relations of the Parties will be governed by and construed in accordance with the laws of the Province of Ontario and the applicable federal laws of Canada. Any actions or proceedings arising in connection with the Agreement will be conducted in the courts of Ontario, which will have exclusive jurisdiction over such proceedings.
A24.0 FURTHER ASSURANCES
A24.1 Agreement into Effect. The Recipient will provide such further assurances as the Province may request from time to time with respect to any matter to which the Agreement pertains, and will otherwise do or cause to be done all acts or things necessary to implement and carry into effect the terms and conditions of the Agreement to their full extent.
A25.0 JOINT AND SEVERAL LIABILITY
A25.1 Joint and Several Liability. Where the Recipient is comprised of more than one entity, all such entities will be jointly and severally liable to the Province for the fulfillment of the obligations of the Recipient under the Agreement.
A26.0 RIGHTS AND REMEDIES CUMULATIVE
A26.1 Rights and Remedies Cumulative. The rights and remedies of the Province under the Agreement are cumulative and are in addition to, and not in substitution for, any of its rights and remedies provided by law or in equity.
A27.0 FAILURE TO COMPLY WITH OTHER AGREEMENTS
A27.1 Other Agreements. If the Recipient:
(a) has failed to comply with any term, condition, or obligation under any other agreement with His Majesty the King in right of Ontario or one of His agencies (a “Failure”);
(b) has been provided with notice of such Failure in accordance with the requirements of such other agreement;
(c) has, if applicable, failed to rectify such Failure in accordance with the requirements of such other agreement; and
(d) such Failure is continuing,
the Province may suspend the payment of Funds for such period as the Province determines appropriate.
A28.1 Survival. The following Articles and sections, and all applicable cross-referenced sections and schedules, will continue in full force and effect for a period of seven years from the date of expiry or termination of the Agreement: Article 1.0, Article 3.0, Article A1.0 and any other applicable definitions, section A2.1(a), sections A4.2(d), A4.5, section A5.2, section A7.1 (to the extent that the Recipient has not provided the Reports or other reports as may have been requested to the satisfaction of the Province), sections A7.2, A7.3, A7.4, A7.5, A7.6, Article A8.0, Article A9.0, section A11.2, sections A12.2, A12.3, sections A13.1, A13.2(d), (e), (f), (g) and (h), Article A15.0, Article A16.0, Article A17.0, Article A19.0, section A22.2, Article A23.0, Article A25.0, Article A26.0, Article A27.0 and Article A28.0.
- END OF GENERAL TERMS AND CONDITIONS -
PROJECT SPECIFIC INFORMATION AND ADDITIONAL PROVISIONS
Amount for the purposes of section A5.2 (Disposal) of Schedule “A”
Contact information for the purposes of Notice to the Province
Name: Ontario Creates
Address: 175 Bloor Street East, South Tower, Suite 501, Toronto, Ontario, M4W 3R8
Contact information for the purposes of Notice to the Recipient
1. The following definition is hereby added to Section A1.2 of Schedule “A” to this Agreement:
“Ontario Creates” means the Ontario Media Development Corporation.
“Online Application Portal (OAP)” means the database through which an application under this Agreement must be submitted.
2. Subsection A4.1(c) of Schedule “A” to this Agreement is hereby deleted and replaced with the following:
(c) provide the Funds to the Recipient by cheque and the Recipient will deposit the Funds into an account designated by the Recipient provided that the account:
(i) resides at a Canadian financial institution; and
(ii) is in the name of the Recipient.
3. Article A8 of Schedule “A” to this Agreement is hereby deleted and replaced with the following:
A8.0 CREDIT, PUBLICITY AND DISCLOSURE
A8.1 Acknowledge Support. Unless otherwise directed by the Province, the Recipient
shall, in a form approved by the Province, acknowledge the support of the Province in any publication of any kind, written or oral, relating to the Project.
A8.2 Prominent Credit. As appropriate, the Province shall receive a prominent credit on
Project materials and in paid advertising, press releases, publicity and promotional material for the Project as follows or in a substantially similar form: “Made possible with the support of Ontario Creates [LOGO]” (or the French version thereof). In all material respects (including size of type and placement), such credit is not to be less prominent than credit accorded to any and all other financial participant(s) in the Project, where applicable, taking into consideration the respective size of the contribution.
A8.3 Final Approval. The Province shall have the final approval right over the credit
proposed for the Province by the Recipient in accordance with section A8.2, including the right to elect that no such credit is to be provided after the date of such election. The Recipient shall provide the Province with draft materials incorporating the credit that the Recipient proposes 14 Business Days in advance of the date when final approval is required from the Province.
A8.4 Public. The Recipient agrees that the Province may make public the name and
business address of the Recipient, the amount of Funds, and the purpose for which such Funds are being provided to the Recipient under the Agreement.
A8.5 Promotion. The Province reserves the right to use the Recipient’s name, Project
title and key art or images to promote the Province’s involvement in the Project. While this right is to be exercised at the discretion of the Province, due consideration is to be given to the appropriate timing of such promotion as it relates to the Project.
4. The reference to the “Ontario Minister of Finance” in Section A16.4 of Schedule “A” to this Agreement is deleted and replaced with the “Ontario Media Development Corporation”.
5. The references to His Majesty the King in right of Ontario in Section A16.5 of Schedule “A” to this Agreement are deleted and replaced with the Province.
6. Section A17.1 of Schedule “A” to this Agreement is hereby deleted and replaced with the following:
A17.1 Notice in Writing and Addressed. Notice will be in writing and will be delivered by electronic means on the Online Application Portal (OAP), email, postage-prepaid mail, personal delivery or fax, and will be addressed to the Province and the Recipient respectively as set out in Schedule “B”, or as either Party later designates to the other by Notice.
7. Article A29.0 is hereby added to Schedule “A” of the Agreement as follows:
A29.0 BUDGET REALLOCATION
A29.1 Where No Formal Amendment Required. Notwithstanding section 3.1 of the Agreement, the reallocation of Funds between line items within the Budget will not constitute a change to the Budget requiring a written amendment to the Agreement duly executed by the Parties, unless the reallocation of such Funds on one or more occasions represents a cumulative amount of reallocated Funds equalling over 10% of the total Funds within the Budget.