Memorandum of Agreement
THE FANSHAWE COLLEGE
OF APPLIED ARTS AND TECHNOLOGY
(Hereinafter the “College”)
(OF THE FIRST PART)
- AND -
FANSHAWE COLLEGE FOUNDATION
(Hereinafter the “Foundation”)
(OF THE SECOND PART)
WHEREAS the College is a corporation without share capital established by O. Reg. 34/03 under the Ontario Colleges of Applied arts and Technology Act, 2002;
AND WHEREAS the Foundation is a non share capital -corporation incorporated by letters patent under the Corporations Act, R.S.O. 1990, C. C.38;
AND WHEREAS the Foundation is established to receive and maintain a fund or funds and to apply all or part of the principal and income therefrom, from time to time, to The Fanshawe College of Applied Arts and Technology, a charitable organization that is also a registered charity under the Income Tax Act (Canada);
AND WHEREAS the Minister of Training, Colleges and Universities requires that there be a memorandum of agreement between the College and the Foundation for the purpose of establishing the operating relationship between the parties hereto;
AND WHEREAS the Foundation's mandate and powers cannot exceed those of the College;
AND WHEREAS the Foundation shall be subject to all the same government policies and directives as the College;
NOW THEREFORE THE PARTIES AGREE EACH WITH THE OTHER AS FOLLOWS:
Roles and Responsibilities
The objects of the Foundation as set out in its letters patent are to receive and maintain a fund or funds and to apply all or part of the principal and income therefrom, from time to time, to The Fanshawe College of Applied Arts and Technology, a charitable organization that is also a registered charity under the Income Tax Act (Canada).
The Foundation shall be operated exclusively for the attainment of the above-noted objects and without the purpose of gain for any of its members and any profits or other accretions shall be used in promotion of its objects.
- Board of Directors
The Board of Directors of the Foundation shall consist of fifteen (15) members.
The Board of Directors of the Foundation shall be responsible for the management and control of the affairs of the Foundation. The Board of Directors of the Foundation may appoint an Executive Director and other officers as it deems advisable for purposes of managing the day to day operations of the Foundation.
The Directors of the Foundation may, subject to the approval of the Board of Governors of the College, make such by-laws and amendments thereto as are necessary for:
- the administration of the Foundation;
- any other matter necessary for carrying out the objects of the Foundation.
- Financial Arrangements
The Foundation shall submit annually for approval by the College a proposed budget including evaluation and results of activities of the Foundation. The College shall not approve a proposed annual budget prepared in respect of a fiscal year of the Foundation that would provide a deficit at the end of such fiscal year. The Foundation shall not make any expenditures that are not within the financial limits set by the approved annual budget.
- Accounting Procedure
The Foundation shall maintain accounting procedures in a manner consistent with the College's accounting policies and practices and which are in accordance with generally accepted accounting principles. The College shall make all reasonable efforts to inform the Foundation of such policies.
The College shall identify what revenues are to be returned to the College and what revenues shall be retained by the Foundation to further the objects of the Foundation.
- Inspection and Audit
The books, accounts, and records of the Foundation shall be made available at all reasonable times for inspection and audit by representatives of the College, who may make copies thereof and take extracts there from the proper facilities for any inspection and audit shall be made available, together with reference to such books and records.
- Status Reports
The Foundation shall, from time to time, promptly furnish to the College such information relating to the operations and affairs of the Foundation as the College may from time to time require.
- Annual Report
The Foundation shall make a report annually to the College regarding the affairs of the Foundation and the College shall submit the report to the Minister of Training, Colleges and Universities.
- Audited Financial Statements
The Foundation shall include in its annual report to the College, the auditor's report and audited financial statements for each fiscal year, as prepared by the College's external auditor, and the College shall include the Foundation's audited financial statements in the College's annual report to the Minister.
When the Foundation proposes entering into any financial arrangements that could increase its liabilities, prior written approval must be obtained from the Board of Governors of the College, which approval shall be consistent with the requirements of the Financial Administration Act, R.S.O. 1990, C. F.12 as amended from time to time and all related government policies and directives.
The Foundation shall adhere to s. 3 of the Financial Administration Act, R.S.O. 1990, c. F.12 as amended from time to time, and all related government policies and directives.
Upon the dissolution of the Foundation and after the payment of all debts and liabilities, the remaining property of the Foundation shall be distributed or disposed of to and for the benefit of The Fanshawe College of Applied Arts and Technology, a charity registered under the Income Tax Act (Canada), in Canada.
The College shall meet with the representative(s) of the Foundation from time to time to discuss the affairs of the Foundation including such matters as budgets, objectives, plans, procedures, use of College resources, and other matters.
- Administrative Procedures
The Foundation shall establish and maintain administrative procedures that permit accurate recording and reporting of the operations of the Foundation and which maintain adequate administrative control.
- Conflict of Interest
The Foundation shall comply with all relevant federal, provincial and municipal laws relating to conflict of interest, including the Corporations Act (Canada). In addition, and pursuant to Recital 6 of this Agreement, the Foundation shall adhere to all conflict of interest directives issued to colleges of applied arts and technology by the Minister of Training, Colleges and Universities.
The Foundation may not enter into agreements with the private sector, governments, related agencies, and other bodies in furtherance of its objects without the prior approval of the College.
- Compliance with Relevant Legislation
The Foundation shall comply with all federal, provincial and municipal laws, including the Personal Information Protection and Electronic Documents Act, and without limiting the generality of the foregoing, the Foundation and wholly-owned projects shall comply with all laws necessary to ensure full compliance with all of the terms and conditions of this Memorandum of Agreement.
The College agrees to make available to the Foundation from time to time such employees that the Foundation may require and request in connection with its operations. The College and the Foundation will enter into written agreements governing the terms pursuant to which employees will be provided, including the fees payable to the College by the Foundation in exchange for making the requested employees available.
The Foundation shall maintain adequate third party liability insurance.
This memorandum of agreement shall take effect on the date of signature of both parties and shall be reviewed on or before the expiration of five years from the date of signing, and shall be subject to review in the interim upon the request of either of the parties hereto.
No agreement purporting to amend or modify this agreement or any document, paper, or writing relating hereto or connected herewith is valid and binding unless it is in writing and signed and accepted in writing by both the College and the Foundation.
- Overriding Provisions
Notwithstanding any other provision of this Memorandum of Understanding, any clause herein that:
- deems or results in the College being held to be a member of the Foundation or that otherwise results in the College being ineligible, under applicable law from receiving any proceeds from the Foundation,
- limits the discretion of the directors of the Foundation contrary to applicable law, or that is otherwise held to be invalid or illegal having regard to applicable law,
shall be severed from this Agreement and such clause shall be void ab initio and deemed to have never been included in this Memorandum of Understanding.