Project consulting agreement
Specimen - only
This Project Controller Agreement
made as of the __ day of ____________ 20__
SHEJ GLOBAL DEVELOPMENTS INCORPORATED, a company incorporated under the provisions of the laws of Ontario Canada (Hereinafter called the "Contractor")
THE FIRST PART
a company incorporated under the provisions of the laws of ____________ (hereinafter called "the Client")
THE SECOND PART
the Contractor is established as an Ontario Corporation in the Province of Ontario, in good standing; and,
the Contractor is engaged in the business of providing Project Management and Project Forensic Services
, for principals and corporations, real estate development and investments; and,
the Client is engaging the Contractor as its authorized Project Controller, scrutiny to provide Project scrutiny and/or Forensic Services (full scope of project: start to finish), from time to time, during the term of this Agreement; and,
the Contractor has been appointed and directed to provide the service or services identified herein, and advise on their timely implementation, execution and control, pursuant to the terms and conditions of this Agreement;
NOW THEREFOR, IN CONSIDERATION OF
$_____________ now paid by the Client to the Contractor and the Parties mutually covenant and agree as follows:
- APPOINTMENT AND ACCEPTANCE
The Client hereby appoints Shej Global Developments, Inc. (the "Contractor"), and the Contractor accepts such appointment on the terms and conditions herein set forth.
- CHARACTER AND EXTENT OF SERVICES
- It is the mutual intent of the Parties that the Contractor shall act strictly in a professional forensic management capacity as an independent contractor for all purposes and in all situations. The Contractor shall not be considered a partner of the Client; and its job content shall be detailed to each particular project.
- The Contractor reserves full control of its activities as to the manner and conduct in rendering services that shall be assigned to the Contractor, from time to time, by the Client; and,
- The Contractor shall, to the extent reasonably required in the conduct of the business of the Client, place at the disposal of the Client its judgement and experience; and furnish to the Client its findings, advice and recommendations, with respect to the required service or services.
- The Contractor shall, subject to scope and type of project, interface and provide the following services as required:
- FEEDBACK CONTROL
- The Contractor shall ensure, throughout the execution phase, that it exercises control over the application or resources to ensure that the project goals are being met - with effective criterion - and that resources are being used judiciously to achieve these goals - an efficiency criterion. The Contractor shall ensure that its feedback control system, maintain the desired state and condition, being developed from the implementation strategy formulated in the planning step and subsequent translation into the control document in the budgeting sequence. The Contractor shall ensure that there is in place
- A means of measuring actual and earned values or resources expended, i.e., a means of detecting what is happening in the parameters being controlled;
- A system of analyzing the significance of what is happening by comparing measurements of what is actually happening with the control budget which is the expectation of what should be happening;
- A system of reporting information of changes to the budget control, actual and earned measurements to those involved in project execution; and,
- A means of controlling or altering the mode of project implementation if the need for doing so is indicated by analyses.
- The Contractor shall ensure that once the master plan and control budget are established, the feedback control loop is in constant motion throughout execution until the project is transformed into an operational facility.
- The Contractor shall be responsible for the delegation of responsibility of functional managers in quantity surveys, engineering, procurement and construction, and implementation and operation of the appropriate control system. The Feedback Control System shall be carried out as follows:
- Starting-up: The Contractor shall resolve financial accounting issues relating to project costs and entity accounting, obtain a clear perspective on the organizational framework for project control, and understand the implications of funding arrangements of the project control;
- Planning: As a member of the core project team, the designated planner shall assist in identifying all tasks that constitute project effort by developing the work breakdown structure and in establishing a master schedule;
- Budgeting: The designated project controller shall co-ordinate the budgeting process, providing specific estimating skills where information is not available to functional departments, and analyzing the control budget for risk to develop an appropriate contingency allowance;
- Measuring: The designated controller shall also maintain payroll, purchasing and related systems to provide accurate and timely measurements of resources expended; and shall be responsible for assisting in the development of performance measurement systems for materials and human resources expended during execution;
- Analyzing: The designated controller shall also identify variances between actual and budgeted expenditures and the interpretation of these variances in conjunction with the line management;
- Reporting: The preparation of control and status reports on cost and schedule parameters, determination of the proper scope, frequency, detail and format for each, and preparation of reports integrating cost and schedule performance measures shall be the sole responsibility of the Contractor.
- Controlling: Although corrective action is the prerogative of line management alone, the Contractor shall be responsible for assisting in the identification and evaluation of options and in estimating the effect of control action taken on costs and schedules to completion; and,
- Closing-out: The Contractor shall be responsible for closing out project books and establishing fixed asset records - the Contractor shall also organize all information relating to project executing so that a post appraisal of capital expenditures may be easily undertaken.
- ACTING IN GOOD FAITH-CONSULTANT STANDARD OF CARE AND PERFORMANCE
- The Client shall exercise the powers and discharge and perform its duties and obligations under this Agreement honestly, in good faith and in the best interests of the Contractor, with the care, skill and diligence under the circumstances then prevailing, using due diligence, best efforts, and commercially reasonable judgement, but unless specifically delineated in writing, guarantees no specific outcome to the Contractor.
- The Client shall provide adequate personnel time to fulfil the service requirements, and may perform services at times, at the Contractor's location(s), wherever situated as the Parties may agree upon, from time to time.
- The Client agrees that the Contractor shall along with the Client determine the disposition of the title to, and the rights under any copyright secured during and in the course of work herein by the Contractor or its employee on copyrighted material first produced or composed and delivered by the Contractor or its agents under this Agreement. This is also subject to the copyright laws, that the Project Owner is an owner of such copyright, so far as is related to this project.
- The Client agrees that it will not knowingly include any copyrighted material, be it written or copyrighted material, furnished or delivered under this Agreement without a licence and/or written permission, as provided in herein of the copyright owner (if different from the Copyright owner), unless specific written approval of the Contractor to the inclusion of such copyrighted material is secured.
- The Client agrees to report in writing to the Contractor promptly and in reasonable detail any notice or claim of copyright infringement received by the Client with respect to any material delivered under this agreement, and vice versa.
- DRAWINGS, DESIGNED, SPECIFICATIONS
- In this section:
- "Protected Information" means all information concerning or related to the business and affairs of the Client or of a Protected Third Party and includes, without limitation originals and all copies or transcriptions, in whole or in part, of books of account, other records and documents, reports, notes, findings, recommendations, memoranda of every description notebooks, sketches, designs, plans, specifications, drawing, films, photographs, negatives, technical scientific and other data, records, models and things, whether in writing, pictorial, schematic or machine-readable form, including in particular any of such as may relate to the financial status, business performance, business prospects, inventions, discoveries, conceptual material, know-how, technical information, trade secrets, data and customer lists of the Client or of a Protected Third Party.
- Protected Third Party" Means any person, firm or corporation with whom the Client has business relations, that involve the delivery to the Client of Protected Information which is the property of such, firm or corporation.
- It is essential to the Client that all Protected Information be kept in the strictest confidence. Except as expressly authorized in writing by the President of the Client, the Contractor will not, direct or indirectly, during or after the term of this Agreement (i) disclose any Protected Information, which the Contractor may acquire in the course of or incidental to the term of this Agreement or otherwise, to any person, firm or corporation, other than to those officers and employee of the Client who have a legitimate interest therein, or (ii) use Protected Information other than in connection with the terms of this Agreement, whether for the Contractor's own benefit or to the detriment or probable detriment of the Client or of any Protected Third Party.
- Protected Party is the property of the Client or a Protected Third, and the Contractor's access to and usage thereof shall be subject to prior approval and inspection of the Client at all reasonable times.
The Contractor shall offer the Client proper facilities for such inspection. The Contractor will use the Contractor's best efforts to prevent any disclosure or use of Protected Information by any other person, whether or not employed by the Client. Such efforts shall include prompt disclosure to the President of the Client of any such disclosure or use of Protected Information by any other person of which the Contractor become aware.
- Upon termination of this Agreement for any reason, or upon demand by the Client at any time during or after the term of this Agreement, the Contractor will promptly deliver to the Client all Protected Information, which shall then be in the Contractor's possession or control.
- The Contractor's obligations contained in this Section 5 shall survive the termination of this Agreement.
- The Contractor (i.) represents and warrants to the Client that the Contractor has not made any agreement with, or undertaking to, any other person, which conflicts or is inconsistent with the terms of this Section 5; (ii.) agrees that each of the terms, provisions and restrictions in this section 5 is, and that they collectively are, reasonable and valid; and (iii.) waives all defences to the strict enforcement of each of such terms, provisions and restrictions against the Contractor.
- Further, Protected Information may be used by the Contractor, in a prudent manner, for any purpose pursuant to this agreement without any claim on the part of the Client or its nominee for additional compensation, other than as set out herein and/or within the schedule(s) hereof, but shall be subject to the right of the Client retaining the original copy, and the supervisory role of the usage thereof, from time to time, Protected Information.
- PERIOD OF SERVICE AND TERMINATION
The period of service by the Contractor under this agreement shall be commenced from the date hereof, for a period of ___________ and may be renewed upon the mutual agreement of the Parties hereto. Notwithstanding either of the Parties have the right to terminate the contract with proper prior notice, being at least _____ days prior written notice to final day of assignment, of the first three years. This contract may also be terminated by mutual consent or by fundamental breach thereof, be it individually or cumulative.
The Client agrees to furnish the Contractor with data pertaining to each approved project, on a timely basis, as reasonably requested by the Contractor. The Client shall provide the Contractor access to personnel, records, facilities, and assets as reasonably necessary to facilitate the agreement and the Contractor performance. If requested, the Client shall designate a contact person ("Contact Person") to whom the Contractor's Communications shall be primarily channeled.
he Contractor, as an independent contractor, shall be responsible for its expenses incurred, including audit, legal and other ongoing professional fees, costs of insurance, government fees and taxes levied as may be authorized by the project owner or owners, and all expenses of meetings and other communications, relating to the approved project or projects, except as otherwise agreed to in writing between the project owner or owners, prior to such expenses being incurred.
- The Contractor shall be paid ________ of _____ percent on each approved and assigned project, which project shall not be less than US$_____________, in equal payments over the term of the project;
- The Contractor shall submit or cause to be submitted a detailed statement of disbursements at the end of the calendar month during which the Project Management Services are performed; and,
- Payment to the Contractor will be made directly from the project proceeds, in favour of the Contractor, by cheque or money order and shall be delivered by certified mail postmarked no later than 30 days subsequent to receipt of the claim disbursements.
It is understood that in the performance of its duties, the Contractor will obtain confidential information about both the Client and the Project Owner or Owners. The Contractor agrees to restrict its use of such confidential information in the performance of its duties described in this agreement.
The Contractor further agrees to return any such confidential information to the respective Parties upon completion/termination of each contract, duly executed between the Contractor and the Project Owner or Owners; and, covenants not to use said information whether gained during the course or in the performance of this agreement or otherwise related to this agreement.
- SUBSTITUTION OF REPRESENTATIVE
Either the Contractor or its Investor may, by proper written notice delivered to the Client, substitute its designated representative with someone else, and the Client, after receipt of any such written notice, shall act on the signature(s) so authorised. Notices in writing, sent by registered mail, addressed to the Client, shall be deemed a notice of the matters contained in it.
This Agreement and all parties thereto including their servants, agents, associates and otherwise are bound by all the clauses of non-circumvention and of non-disclosure and the provisions of the International Chamber Commerce (Paris) Rules 400 and 500.
- CONFLICT OF INTERESTS
The Client recognises that there may be situations in which the interests of the Contractor, or those of its employees, or nominees may conflict with those of the Client including, but not limited to the following:
Notwithstanding, it is the duty of the Contractor to immediately inform, or cause to be informed, the Client of any such conflict of interest in any situations by written notification, be it hand delivered or, by certified mail.
- The Contractor is or, may become involved in other corporations, partnerships or projects, or provide similar services to other entities; and/or,
- The Contractor is or may investing in a business in which the Client or its parent company has participated, or is participating, or may participate, directly or indirectly.
This Agreement shall not be amended, varied or modified as to any of its terms and conditions, except by consent in writing signed by the parties, and assented to by the Client.
- TIME IS OF THE ESSENCE
It is understood that time is of the essence, in regards to the implementation, execution, and control of the subject matters contained within this Agreement. In the event that all the terms and conditions are not fully performed within the time specified, then the Client shall make return of the Security delivered to it as provided herein, without prejudice to the other rights of the Contractor, under this Agreement.
If the Client wishes to resign, or in the event the Client wishes to terminate this Agreement, the Client shall give the Contractor at least 90 days written notice of such termination. Upon such resignation taking effect, the Client shall appoint an alternate Contractor in place of the resigning Contractor, and the alternate Contractor shall assume and be bound by the obligations of the Client hereunder. Upon payment of its outstanding fees, the Client hereunder shall turn over all deposited funds, documents, and certificates to the alternate Contractor appointed hereunder.
Any notice to the Client shall be sufficient, if received by the Client within the agreed upon time-period, as established by the parties, from time to time. All mailings and notices from the Client to the Contractor, or the Contractor to the Client, provided for in this paragraph shall be addressed to the party to receive the notice at the address set forth in the register of the parties.
- CLAIM, DEMAND, ACTION
This agreement shall be governed by, and construed in accordance with, the laws of the Province of Ontario and Canada applicable thereto. The parties further agree that no claim, demand, action, proceeding, hearing, arbitration, litigation, motion, or lawsuit arising herefrom or with respect hereto shall be commenced or prosecuted in any jurisdiction other than in the said province, and any judgement, determination, findings, or conclusion reached or rendered in any other jurisdiction shall be null and void between the Parties hereto, save as may be permitted by the courts of the Province.
We acknowledge receipt of a signed copy of this Agreement and authorize that a copy be forwarded to our solicitor.
- This Agreement (including Schedules) is the entire agreement between the parties and may be modified only in writing signed by all parties.
- In this Agreement, the singular includes the plural and the masculine includes the feminine and neuter and vice versa unless the context otherwise requires.
- The capitalized headings in this Agreement are only for convenience of reference and do not form part of or affect the interpretation of this Agreement.
- If any provision or part of any provision in this Agreement is void for any reason, it shall be severed without affecting the validity of the balance of the agreement.
- There are no representations; warranties, conditions, terms, or collateral contracts affecting the transaction contemplated in this Agreement except as set out in this Agreement.
- ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties hereto, and supersedes all prior agreements, representation, warranties, statements, promises, information, arrangements and understandings, whether oral or written, expressed or implied, with respect to the subject matter hereof. None of the Parties hereto shall be bound or charged with any oral or written agreements, representations, warranties, statements, promises, information, arrangements or understandings, not specifically set forth in this Agreement, or documents and instruments to be delivered on the date hereof.
This agreement shall ensure to the benefit and be binding on the Parties and their respective heirs, executors, successors, and assigns.
Dated this ___ day of _____________, 20__
IN WITNESS WHEREOF the Parties have executed this Agreement.
|SIGNED, SEALED AND DELIVERED
||Shej Global Developments, Inc.C/S
|In the presence of:
I have the authority to
bind the Corporation
I have the authority to
bind the Corporation