Consulting Services Agreement: Coordinator/Program Manager, Contract # XXX
XXX Invasive Plant Committee
AGREEMENT
THIS AGREEMENT made this XXday of XXX, 20 XX.
BETWEEN:
XXXINVASIVE PLANT COMMITTEE
[address]
[city][province][postal code];
(hereinafter called the “XXXIPC”)
OF THE FIRST PART
AND:
[Name]
[address]
[city][province] [postal code];
(hereinafter called the “Consultant”)
OF THE SECOND PART
WITNESSES that in consideration of their mutual duties and responsibilities to one another contained in the Agreement, the parties to this Agreement agree with each other as follows:
1.0DEFINITIONS
1.1“Consulting Fee” means the fee identified as the Total Estimated Costs for this project contained in Schedules A - Fees and Invoicing, andC – Workplan for XXXIPC Program Manager Contract 20XX (hereafter referred to as the Workplan), a copy of which is attached as Schedule “C” to this Agreement and forms part of the Agreement.
1.2“Project” means the Coordinator/Program Management services for the XXXIPC in accordance with the terms of this Agreement.
1.3“Proposal” means the Consultant’s proposal attached as Schedule “C”.
1.4“Services” means the acts, services, and work necessary to perform and complete the work:
(i)described in the Workplan; and
(ii)described in any letter from the XXXIPC to the Consultant after the date of the proposal, including any amendments or supplements to the Services described in paragraph (i);
(iii)all acts, services and work necessary to perform and complete the acts, services and work described above.
1.5Sub-consultant” means any other persons engaged by the Consultant in connection with the Project.
2.0SERVICES TO BE PERFORMED
2.1The Consultant agrees to perform the Services, on the terms and conditions of this Agreement.
3.0SCHEDULES
3.1The Consultant shall perform the Services in accordance with the Proposal included as Schedule “C” in this Agreement and in accordance with the XXXIPC Action Plan included as Schedule “D”.
3.2Changes to the work as outlined in Schedules “C” & “D” shall be allowed when mutually agreed to and adjusted in the contract through the Change of Notice Form included as Schedule “B”.
3.2This will be a [term length, e.g., 1 year]contract with an option to renew for an additional one or more years, upon mutual agreement.
4.0CONSULTANT’S DUTIES
4.1In performing the Services the Consultant shall, at all times, act in the best interests of the XXXIPC and exercise the degree of professional care, skill and diligence required by generally accepted professional standards and Acts including the Agrologist Act and the College of Applied Biology Act.
4.2Without affecting the Consultant’s obligations under this Agreement, and with the prior agreement of the XXXIPC Board of Directors, the Consultant may engage the services of individuals who have the education, training, skill and experience necessary to perform the Services in accordance with Section 4.1, and shall cause them to perform the Services on behalf of the Consultant.
5.0PAYMENT
5.1Consultant shall be paid the feesas outlined in Schedule A. The fee shall be paid in [period length, e.g., monthly] instalments. The XXXIPC shall have no obligation to pay the fees or disbursements to the Consultant that are in excess of the Consulting Fee for any reason whatsoever, other than as may be agreed to in writing by the XXXIPC and the Consultant under Section 8.1.
5.3The Consultant shall make application to the XXXIPC for payment, together with supporting documents, when required by this Agreement, on or before the last day of each [period length, e.g., month]for approval and due processing. Payment shall be for the portion of the various parts of the disbursements incurred during the preceding [period length, e.g., month]. The sum shall become due and payable approximately [period length, e.g., thirty (30) days] after the submission date. Should the XXXIPC be unable to verify any invoice within the said period, payment by the XXXIPC may either be withheld or may be made and treated as an advance pending verification of the invoice. Where required by the XXXIPC, the Consultant shall provide substantiation to the XXXIPC in order to verify any invoice. Where only part of an invoice can be verified by the XXXIPC, the XXXIPC may, at its discretion, choose to pay that part only, pending proper verification of the remainder of the invoice by the Consultant.
5.4Account adjustments which have not been made prior to payment of an invoice, may be made by the XXXIPC at the time of a later payment. Where it has been established that the XXXIPC has overpaid against an invoice, the Consultant will deduct the amount from the next invoice, or the Consultant shall pay the amount to the XXXIPC within [period length, e.g., five (5)] working days of the amount being identified, as required by the XXXIPC.
5.5The XXXIPC may request the Consultant to submit with the final invoice, a Statutory Declaration or other proof, that there are no outstanding costs, assessments, liens, or claims against the Consultant or against the XXXIPC’s property arising out of or in connection with the Consultant’s Services rendered on the Project.
6.0TERMINATION AND SUSPENSION
6.1Upon termination of this Agreement the Consultant must immediately deliver to the XXXIPC, without request, all documents and materials related to the Project in the Consultant’s possession or under its control, including those documents and materials specified in Sections 11.3 and 11.4.
BY THE XXXIPC
6.2Should the Consultant neglect to complete the Services properly or fail to perform any of its obligations under this Agreement, the XXXIPC may notify the Consultant in writing that it is in default of its contractual obligations and instruct it to correct the default within [period length, e.g., seven (7)] working days of receiving the notice. Failure to comply with the request to correct performance extends to the XXXIPC the option, without limiting any other right or remedy the XXXIPC may have, of immediately terminating this Agreement.
6.3Other than for reasons set forth in Section 6.2, the XXXIPC may terminate this Agreement for any reason by giving [period length, e.g., thirty (30)] days prior written notice to the Consultant. Upon receipt of such notice, the Consultant shall perform no further Services other than those reasonably necessary to cease work on the project. In such event, the Consultant will be paid by the XXXIPC pursuant to this Agreement, for the completed tasks remaining unpaid as of the effective date of such suspension or termination. The Consultant is not entitled to, and irrevocably waives, any damages or compensation for costs incurred, loss of profit, or loss of opportunity, directly or indirectly arising out of the termination or suspension of all, or any part, of the Agreement or Services.
BY THE CONSULTANT
6.4Should the XXXIPC fail to perform any of its obligations under this Agreement, the Consultant may notify the XXXIPC in writing that it is in default of its contractual obligations and instruct it to correct the default within [period length, e.g., seven (7)] working days of receiving the notice. Failure of the XXXIPCto comply with the request to correct its contractual obligations extends to the Consultant the option, without limiting any other right or remedy the Consultant may have, of immediately terminating this Agreement and requesting settlement for all Services performed and all disbursements incurred pursuant to this Agreement and remaining unpaid as of the effective date of such termination.
7.0SUCCESSORS AND ASSIGNS
7.1This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective, heirs, executors, administrators, personal representatives, successors and permitted assigns.
7.2Neither party may assign, sub-contract or transfer any interest in this Agreement without the prior written consent of the other.
8.0CHANGES IN THE WORK
8.1Any services rendered by the Consultant to the XXXIPC beyond those Services set out in the Workplan shall be considered to be Additional Services. The Consultant shall be compensated for any Additional Services on an hourly or per diem basis as agreed upon by the XXXIPC and the Consultant in writing prior to the Consultant performing the Additional Services.
8.2The XXXIPC may issue to the Consultant a Change Notice to make changes to the work, omit part of the work, or require additional work. A Change Notice shall form a schedule to this Agreement and the terms of the Change Notice shall prevail over any other provision of the Agreement, in the event of an inconsistency between them. The XXXIPC and the Consultant shall appraise the value of the changes to the work specified by the Change Notice, and within [period length, e.g., 60] days of receipt of the Change Notice, agree on the new price to be paid for the work or the reduction in the fee payable to the Consultant. The Change Notice form shall form part of this Agreement as Schedule "B".
9.0APPLICABLE LAWS
9.1The Consultant shall observe and abide by all applicable laws, regulations, ordinances and other rules of the XXXIPC, the Federal Government, the Province of BritishColumbia, and all applicable regional and municipal laws and regulations. Without restricting the generality of the foregoing, the Consultant shall abide by all provisions of the Workers' Compensation Act of British Columbia, and upon request by the XXXIPC , shall supply proof that all assessments thereunder have been paid.
9.2This Agreement and any rights and remedies arising out of this Agreement, shall be construed in accordance with the laws of the Province of British Columbia.
10.0WAIVER
10.1The waiver by the XXXIPC of the breach of any condition, covenant or obligation under this Agreement required to be kept, observed and performed by the Consultant, will not operate to waive or be deemed to waive any subsequent breach of the same condition, covenant or obligation.
11.0CONFIDENTIALITY, OWNERSHIP AND USE OF DOCUMENTS AND MATERIALS
11.1The Consultant acknowledges that the XXXIPC is subject to the British Columbia Freedom of Information and Protection of Privacy Act. Subject to Sections 12 through 22 inclusive of the Act, any reports and/or documents produced by or on behalf of the XXXIPC are subject to public review under the Act.
11.2The Consultant shall keep confidential for an unlimited period of time, all communications, plans, specifications, reports or other information used in connection with the Project except:
11.2.1those requiring disclosure by operation of law; or
11.2.2any disclosure authorized in writing by the XXXIPC.
The Consultant shall, by employing written agreements, bind all employees, sub-consultants and agents to the obligations required by this Section.
11.3The Consultant agrees that all studies, reports, digital data, software, drawings, plans, models, designs, photographs, specifications, tender documents and other materials prepared or developed by or on behalf of the Consultant which are employed in connection with the Project are and shall remain the property of the XXXIPC. The XXXIPC reserves the ownership and all copyright, patent and trademark rights therein and in the work executed therefrom, all of which may only be used by the Consultant with the prior written consent of the XXXIPC.
11.4All concepts, methods, products or processes produced by or resulting from the Services rendered by the Consultant in connection with the Project or which are otherwise developed or first introduced to practice by the Consultant in the performance of the Services, and which are patentable, capable of trademark or otherwise, are and shall remain the property of the XXXIPC, and the Consultant shall not use, infringe upon or appropriate such concepts, products or processes without the prior written agreement of the XXXIPC.
11.5Subject to Section 11.1 and other than as permitted under Sections 11.3 and 11.4, the Consultant's documents and materials related to the Project, including those documents and materials specified in Sections 11.3 and 11.4 are confidential and intended only for use of the XXXIPC and any distribution, copying or other use by anyone else is prohibited without the XXXIPC’sprior written consent.
12.0STAFF MEMBERS ANDSUB-CONSULTANTS
12.1The Consultant agrees to employ those Sub-consultants to supply the Services identified in its Proposal in conjunction with the signing of this Agreement. The Consultant agrees that it has the responsibility for the complete coordination of all professional Services rendered to the XXXIPC by the Consultant or by its Sub-consultants on the Project.
13.0ARBITRATION
13.1All matters in dispute under this Agreement must be submitted to arbitration pursuant to the Commercial Arbitration Act (British Columbia) to a single arbitrator appointed jointly by them.
13.2No one shall be nominated to act as an arbitrator who is in any way financially interested in the conduct of the Project or in the business affairs of either the Client or the Consultant.
13.3If the parties cannot agree on the choice of an arbitrator each party shall select a nominee and the nominees shall jointly appoint an arbitrator.
13.4The laws of the Province of British Columbia shall govern this Agreement and any arbitration or litigation in respect thereof.
13.5The award of the arbitrator shall be final and binding upon the parties.
13.6Costs of the arbitration must be divided equally between the parties.
14.0RECORDS AND AUDIT
14.1The Consultant shall keep reasonable and proper records, accounts, statements and other relevant documents in all formats for a period of not less than six (6) years after completion of the Project or for such extended period as may be required by law or as the XXXIPC may request in writing.
14.2The Consultant shall permit the XXXIPC to inspect, audit and copy all records, accounts, statements and other relevant documents of the Consultant relating to the Project at all reasonable business hours in the offices of the Consultant.
15.0INDEMNIFICATION
15.1The Consultant shall indemnify and save harmless the XXXIPC, its officers, employees, agents, and members from and against all claims, losses, damages, costs, expenses (including legal fees and disbursements), liabilities, actions, and proceedings which the XXXIPC may incur or suffer by reason of, in connection with, or arising from any willful or negligent act or omission, or other actionable wrong, on the part of the Consultant, its employees, agents, or sub-consultants, connected with the performance or breach of this Agreement by the Consultant.
15.2The Consultant shall compensate the XXXIPC for any loss or any damage to the
XXXIPC’s premises or property, arising out of the performance of the Services.
16.0INSURANCE
16.1The Consultant shall, at his own expense, provide and maintain until the completion of the Project the following insurance in a form acceptable to the XXXIPC with an insurer licensed in British Columbia.
(a)Comprehensive Public Liability and Property Damage$2,000,000.00 - inclusive per occurrence for bodily injury and property
damage or $2,000,000.00 for personal injury
(b) Professional Liability$2,000,000.00
(c) Automobile Insurance (owned and non-owned)$1,000,000.00
The Consultant shall require that each of his Sub-Consultants provide evidence of comparable insurance in the name of the Sub-Consultant as set forth under this clause.
16.2The Consultant shall provide the XXXIPC with a certificate or certificates of insurance as evidence that such insurance is in force including evidence of any insurance renewal or policy or policies. Every certificate, or certificates of insurance shall include, certification by the insurer that the certificate of insurance specifically conforms to all of the provisions required herein.
16.3Maintenance of such insurance and the performance by the Consultant of their obligation under this clause shall not relieve the Consultant of liability under the indemnity provisions set forth herein.
17.0REMEDIES NOT EXCLUSIVE
17.1No remedy conferred upon or reserved to the XXXIPC or the Consultant is exclusive of any other remedy herein or provided by law, but such remedy shall be cumulative and shall be in addition to any other remedy herein or hereafter existing at law, in equity or by statute.
18.0SEVERANCE
18.1If any portion of this Agreement is held to be illegal or invalid by a court of competent jurisdiction, the illegal or invalid portion shall be severed and the decision that it is illegal or invalid does not affect the validity of the remainder of the Agreement.
19.0ENTIRE AGREEMENT
19.1This Agreement constitutes the sole and entire Agreement between the XXXIPC and the Consultant relating to the Project.
20.0NO DUTY OF CARE
20.1The Consultant acknowledges that the XXXIPC, in the preparation of the Agreement documents, supply of oral or written information to consultants, review of proposals or the carrying out the XXXIPC’s responsibilities under this Agreement, does not owe a duty of care to the Consultant and the Consultant waives for itself, its successors and assigns, the right to sue the XXXIPCin tort for any loss, including economic loss, damage, cost or expense arising from or connected with any error, omission or misrepresentation occurring in the preparation of this Agreement, the request for proposals, supply of oral or written information to proponents, review of proposals, or carrying out of the XXXIPC’s responsibilities under this Agreement.
21.0RELATIONSHIP
21.1The legal relationship between the Consultant and the XXXIPC arising pursuant to this Agreement is that of an independent contractor and purchaser of such services, and, in particular and without limiting the generality of the forgoing nothing in this Agreement shall be construed so as to render the relationship between the Consultant and the XXXIPC to be that of employee and employer.
22.0OBLIGATIONS OF THE CONSULTANT
22.1All covenants, liabilities and obligations entered into or imposed upon the executing parties hereunder shall be joint and several.
23.0RECEIPT OF AN ADDRESS FOR NOTICE
23.1Communications in writing between the parties shall be considered to have been received by the addressee on the date of delivery if delivered by facsimile, by hand to the individual or to a member of the company for whom they are intended when addressed as follows:
The XXXIPC at:
XXXPlant Committee
[address]
[city][province] [postal code];
Fax: XXX XXX-XXXX
Attention: XXX
The Consultant at:
[Name]
[address]
[city][province] [postal code];
24.0TIME
24.1Time is of the essence in this Agreement.
25.0HEADINGS
25.1Section and subsection headings are inserted for identification purposes only and do not form part of this Agreement.
26.0LANGUAGES
26.1Wherever the singular or masculine is used herein, the same shall be construed as meaning the plural or the feminine or the body corporate or politic as the context so requires.