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APPENDIX C
CONSULTANTSERVICES AGREEMENT
THIS AGREEMENT made as of this **thday of ***, 2018.
BETWEEN:
Housing Services Corporation
(hereinafter called “HSC”)
AND
[CONSULTANT’S NAME]
(hereinafter called the “Consultant”)
WHEREASHSC wishes to engage the Consultant to provide audit services;
AND WHEREAS the Consultant is engaged in the business of providing consulting services (professional and other) and represents that it has the skills and knowledge to provide the said services;
NOW THEREFORE in consideration of the premises and mutual agreements contained in this Agreement and other good and valuable consideration, the parties agree as follows:
Article1
Interpretation
1.1Definitions
In this Agreement, including the recitals hereto, capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in Appendix 1.
1.2Statutes
Unless specified otherwise, reference in this Agreement to a statute refers to that statute as it may be amended, or to any restated or successor legislation of comparable effect.
1.3Headings
The division of this Agreement into articles, sections, subsections, appendices and exhibits and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The article, section, subsection, appendix and exhibit headings in this Agreement are not intended to be full or precise descriptions of the text to which they refer and are not to be considered part of this Agreement. All uses of the words “hereto”, “herein,” “hereof,” “hereby” and “hereunder” and similar expressions refer to this Agreement and not to any particular section or portion of it. References to an Article, Section, Subsection, Appendix or Exhibit refer to the applicable article, section, subsection, appendix or exhibit of this Agreement.
1.4Number and Gender
In this Agreement, words in the singular include the plural and vice-versa and words in one gender include all genders.
1.5Entire Agreement
This Agreement, the Proposal, and all material submitted as part of the Proposal, constitute the entire agreement between the Parties pertaining to the subject matter hereof and supersede all prior agreements, negotiations, discussions and understandings, written or oral, between the Parties.
In the event of any conflict or inconsistency between any of the documents forming part of this Agreement, such conflict or inconsistency shall be resolved in the following order of paramountcy:
oThe terms of this Agreement, except Appendices 2 & 3;
oRequest for Proposal (RFP) #18-226-05, attached as Appendix 2; and
otheConsultant’s Proposal dated ***, 2018, attached as Appendix 3.
1.6Amendment
This Agreement may be amended, modified or supplemented only by a written agreement signed by HSC and the Consultant.
1.7Waiver of Rights
Any waiver of, or consent to depart from, the requirements of any provision of this Agreement shall be effective only if it is in writing and signed by the Party giving it, and only in the specific instance and for the specific purpose for which it has been given. No failure on the part of any Party to exercise, and no delay in exercising, any right under this Agreement shall operate as a waiver of such right. No single or partial exercise of any such right shall preclude any other or further exercise of such right or the exercise of any other right.
1.8Applicable Law
This Agreement shall be governed by, and interpreted and enforced in accordance with, the laws in force in the Province of Ontario.
Article2
ENGAGEMENT OF CONSULTANT
2.1Consulting Services
The Consultant shall provide and perform all the Services as set out in Schedule 1.The work shall start no later than *** 2018and must be completed by ***. HSC shall pay the Consultant up to the maximum sum of ***dollars ($***) as outlined in Schedule 2 –Pricing, exclusive of HST, for the Services. This price includes all expenses and disbursements.
2.2No Partnership
The Consultant, its permitted sub-consultants, the officers, directors, shareholders, partners, personnel, affiliates and agents of the Consultant and its permitted sub-consultants are not, nor are they to be deemed to be partners, appointees, employees or agents of HSC and have no right to the compensation or benefits HSC provides to its employees. Except as specifically authorized in writing by HSC, the Consultant has no authority to contract for or bind HSC in any manner and shall not represent itself as an agent, owner or employee of HSC. Nothing in this Agreement nor any act of the parties hereto shall be construed, implied or deemed to create an agency, partnership, joint venture or employer and employee relationship between them.
Article3
PERSONNEL
3.1Personnel
The Services and Deliverables shall be provided by personnel of the Consultant listed in the Proposal. The Consultant shall exercise due diligence in selecting employees to perform the Services taking into consideration that employees will be attending in private residences of tenants. HSC shall have the right to review the resumes and references and to interview the specific personnel proposed with respect to an Assignment and may reject such individuals from working on any Assignment at its sole discretion.
Article4
CONFIDENTIALITY
4.1Confidential Information
The Consultant shall ensure that the Consultant, its partners, directors, officers, personnel, affiliates, agents and volunteers shall, both during and following the term of this Agreement, maintain confidential and secure all material and information that is the property of HSC and/or that comes into the Consultant’s possession or under the Consultant’s control during the term of this Agreement. This includes intellectual property acquired or prepared by the Consultant pursuant to this Agreement which shall be the sole property of HSC.
4.2Use of Confidential Information
The Consultant shall use the material and information only for the purpose of performing its obligations under the provisions of this Agreement and shall not use it for any other purpose without the prior written consent of HSC. Without limiting the generality of the foregoing, the Consultant shall not use the material and information in any manner that would be detrimental to the commercial, financial, operational or legal interests of HSC.
4.3Non-confidential Information
Confidential material and information shall not include any information which,
(a)Was at the time of disclosure, or thereafter became, part of the public domain through no act or omission of the Consultant;
(b)Was provided to the Consultant by a third party who, to the best of the Consultant’s knowledge, did not acquire it under an obligation of confidentiality either directly or indirectly from HSC;
(c)Was known to the Consultant at the time of disclosure thereof by HSC provided that there has been no contravention of any laws, regulations or breach of any confidentiality obligation to HSC with respect to the material and information and such contravention or breach is known or reasonably ought to be known to the Consultant; or
(d)Was required to be disclosed by law.
4.4Survival
These provisions survive without time limit the expiration or termination of this Agreement.
4.5Communication with Media
The Consultant shall not communicate directly or indirectly with any media with respect to this Agreement without the prior written consent of HSC.
Article5
ASSIGNMENT
5.1The Consultant shall not assign any rights or benefits under this Agreement to any Person without the prior written consent of HSC. This Agreement shall enure to the benefit of and be binding upon the Parties hereto and their respective successors and permitted assigns.
Article6
TAXES andINDEMNIFICATION
6.1Taxes
The Consultant shall be solely responsible for all deductions and remittances required to be made by law as a result of providing and performing the Services to HSC.
6.2Indemnity
The Consultant shall indemnify and save harmless HSC, its personnel, directors, officers, contractors, agents and assigns (collectively, the “Indemnitees”)from and against any claim, demand, liability, damage, loss, cost, expense, suit, action or cause of action (“Claim”) of any nature whatsoever and howsoever caused resulting from or relating to:
(a)Any breach, violation or non-performance by the Consultant of any covenant, obligation or agreement of the Consultant contained in this Agreement, including any warranty (express or implied);
(b)Any negligent acts or omissions or wilful misconduct by or on behalf of the Consultant relating to the Services and/or Deliverables with respect to any Assignment;
(c)Any acts performed or omitted to be performed (including, without limitation, any negligent acts or omissions) by or on behalf of the Consultant beyond the authority of the Consultant hereby conferred;
(d)Any claims for personal injury or property damage by third parties, caused by errors, omissions, negligence, wilful misconduct, recklessness or fraud of the Consultant, its officers, directors, partners, affiliates, agents or employees in connection with the Services and Deliverables with respect to any Assignment;
(e)Any inaccuracy in or breach of any of the representations or warranties of the Consultant contained in this Agreement or any document or certificate prepared by or on behalf of the Consultant given pursuant to this Agreement;
(f)All costs, expenses and legal fees (on a solicitor and his own client basis) that may be incurred or paid by HSC in enforcing the terms, covenants and conditions of this Agreement and/or that may be incurred or paid by HSC in connection with any action, suit or proceeding with respect to a matter for which the Consultant is obligated to indemnify the Indemniteespursuant to this Section6, provided that the indemnity obligations of the Consultant hereunder shall not extend to claims attributable to the negligence or wilful misconduct of HSC; and
(g)All amounts, costs, damages, claims or other liability that HSC may be liable for arising from the failure of the Consultant to remit deductions and remittances required in connection with the Consultant providing or performing the Services.
6.3The indemnity in Section 6.2 shall not affect or prejudice HSC from exercising any other rights that may be available under law.
6.4Neither HSC nor the Consultant shall be liable for any indirect, special or consequential damages in relation to any Assignment or this Agreement.
6.5These provisions survive the expiration or termination of this Agreement.
Article7
INSURANCE
7.1Insurance During the Performance of the Services
The Consultant covenants and agrees with HSC that the Consultant shall obtain and maintain, at its own expense, during the term of this Agreement, the following insurance and shall provide, upon request from Client, a signed certificate of insurance, to be kept in full force and effect at all times throughout the performance of the Services agreed to between the Consultant and Client.
(a)Comprehensive/Commercial General Liability Comprehensive/commercial general liability insurance, provided upon request to HSC, insuring the Consultant and naming both the Client and HSC as additional insureds for the duration of the work or assignment performed. Such general liability insurance shall cover liability arising from premises, operations, independent contractors, sub-consultants, personal injury and liability assumed under an insured contract, provide coverage in respect of property damage and/or bodily injury (including death) arising out of any and all Services or Deliverables and shall include property damage if the damaged work or the work out of which the damage arises was performed on behalf of the Consultant by a third party and shall include bodily injury (including death) if the bodily injury (or death) arises out of work performed on behalf of the Consultant. Such insurance shall contain both cross liability, and severability of interest endorsements.
The policy limit shall be no less than Five Million Dollars ($5 Million) per each occurrence. The coverage under the policy shall be maintained continuously with respect to the performance of any aspect of the Services during the term of the Agreement with HSC.
(b)Professional Liability - A professional liability insurance policy, provided upon request to HSC, in an amount not less than Five Million Dollars ($5 Million) per claim and in the aggregate insuring the Consultant. The coverage under the policy shall be maintained continuously during the term of this Agreement and for a period of not less than two years after the termination or expiration of this Agreement and shall cover insurable losses arising out of an error or omission in the rendering of or failure to render the Services or Deliverables.
(c)Automobile Liability – Automobile liability insurance, provided upon request to the Client, covering all owned, non-owned and hired vehicles.
(d)Additional Requirements: - Requirements for minimum limits of insurance as defined above may be increased at the sole discretion of the Client to adequately address any or all reasonable risks associated with specific assignments or works performed by the Consultant. Any surety bonding, warranties, completed operations insurance requirements, or other guarantees or covenants will be subject to individual details contained within the Assignment specifications, or as negotiated with the individual Client, and the determination or enforcement of such additional coverages, limits, guarantees, or warranties, including the monitoring or enforcement thereof, are not the responsibility or liability of HSC whatsoever, and are solely at the determination and the discretion of the Client..
(e)Other Insurances - Any other type, (including special and specific project or professional liability insurances or bonds) in such form as otherwise may be required from time to time, provided upon request to HSC.
7.2Waivers of Subrogation
Each of the policies of insurance, provided upon request to HSC, pursuant to this Article 7 shall contain a waiver of subrogation in favour of the insureds subject to the availability in accordance with insurance industry practice.
7.3CoInsurance
If any policies of insurance shall contain any co-insurance clause, the Consultant shall maintain or cause to be maintained at all times a sufficient amount of such insurance to meet the requirements of any such co-insurance clause so as to prevent the Consultant or HSC from becoming a co-insurer under the terms of such policy or policies and to permit full recovery up to the amount insured in the event of loss, less any deductible.
7.4Approvals
All insurance required to be maintained by this Article 7 may, if requested, be approved in writing by HSC, from time to time as to terms, form, premium, amounts, deductibles, loss payees, named and additional insureds and insurers. Each policy and certificate of insurance shall be signed by the insurer or insurers responsible for the risks insured against.
7.5Right to Insure
Upon request, the Consultant shall advise HSC of any cancellation, material alteration or lapse of any policies of insurance required to be provided hereunder. If the Consultant fails to obtain and maintain or cause to be obtained and maintained such insurance or if such insurance is in an amount less than the amount required under this Agreement, HSC shall have the right (without any obligation to do so), upon two (2) days’ notice to the Consultant in a non-emergency situation or forthwith in an emergency situation and without assuming any obligation in connection therewith, to effect such insurance and all costs, expenses and other outlays by HSC in connection therewith together with interest at the Rate of Interest shall be payable by the Consultant to HSC upon demand without prejudice to any other rights and recourse of HSC hereunder. No such insurance taken out by HSC shall relieve the Consultant of its obligations to insure hereunder and HSC shall not be liable for any loss or damage suffered by the Consultant in connection therewith.
7.6Cooperation
HSC and the Consultant will covenant and agree with each other to do all acts, matters and things as may be reasonably necessary or required to expedite the adjustment of any loss or damage covered by insurance hereunder so as to expedite the release and dedication of proceeds of such insurance in the manner and for the purposes herein contemplated.
7.7Proof of WSIB Coverage
Consultant shall, at all times and in each province or territory in which work or services are to be performed, be registered with the applicable provincial or territorial workers’ compensation or workplace safety and insurance board (hereinafter “WSIB”) and shall maintain a workers’ compensation account in good standing, whether mandatory or non-mandatory under provincial or territorial legislation. The workers’ compensation account shall include personal coverage for all employees, partners, proprietors, directors and officers of the Consultant involved in any aspects of the work or services to be performed. Consultant shall pay all premiums, contributions or assessments in respect of any such workers’ compensation account when due.
Consultant shall also ensure that, at all times and in each province or territory in which work or services are to be performed, any of its sub-consultants are registered with the WSIB and maintain a workers’ compensation account in good standing, whether mandatory or non-mandatory under provincial or territorial legislation. The workers’ compensation account shall include personal coverage for all employees, partners, proprietors, directors and officers of the sub-consultants involved in any aspects of the work or services to be performed. Consultant shall ensure that the sub-consultants pay all premiums, contributions or assessments in respect of any such workers’ compensation account when due.
Prior to the commencement of any work or services hereunder, the Consultant shall submit to HSC, for itself and each of its sub-consultants, a valid clearance certificate or similar document certifying that the workers’ compensation account is in good standing and that all premiums, contributions and assessments have been paid (collectively, hereinafter “Clearance Certificate”) from the WSIB in each province or territory in which work or services are to be performed. Thereafter and until all work and services hereunder are completed, at the request of HSC, the Consultant shall obtain additional Clearance Certificates, for itself and each of its sub-consultants, prior to the expiry of the existing Clearance Certificates.
Article8
REPRESENTATIONS AND WARRANTIES
8.1The Consultant hereby represents and warrants that:
(a)if the Consultant is a corporation duly incorporated or a partnership, or sole proprietorship, as the case may be, it is organized and subsisting with power to own its assets and to carry on business, and that it has good and sufficient power, authority and right to enter into this Agreement and to provide the Deliverables and Services, and that it has good and sufficient power, authority and right to license the Deliverables to HSC free and clear of all liens, charges and encumbrances; and that neither the execution of this Agreement, nor the carrying out of any of the obligations of the Consultant will result in a violation of any of the provisions of its constating documents or by-laws, or any agreement or other instrument to which it is a party or is bound, or to any applicable law or regulation; and that this Agreement constitutes a valid, binding and legally enforceable obligation of the Consultant in accordance with its terms;