OWNER’S REPRESENTATIVE CONTRACT
This contract is made between:
- …………………………………………. (Name of Owner) (Owner)………. Whose address for this agreement shall be………………………………. (Owner’s Address) (Hereinafter referred to as Owner/Client)
- Owner’s Representative: (Name and address of the Owner’s Representative) (Hereinafter referred to as Representative)
(Likewise, the Owner and Service Provider (Owner’s Representative) are each referred to herein as a “Party” and, collectively, as the “Parties.”)
- (Name of the Owner/Contracting Party) ……………………… agrees to contract …………………………… (Owner’s Representative) to provide services as enumerated in this agreement.
- Owner’s Representative offers to provide comprehensive services including, __________, __________, __________ __________ (the “Property”), in accordance with this agreement’s plans and specifications, this Agreement and any other document provided by the Owner herein, (collectively, the “Contract Documents”): _______________________________________________________________________________________________ [Description of work] (the “Work”).
NOW, THEREFORE, AND IN CONSIDERATION, of the mutual terms and conditions contained herein, the parties agree as follows:
- Scope of the work
The Owner’s Representative is to provide services as follows;
- Stage 1 – Team Organization and Site Selection
Develop the initial building concept.
- Stage 2 – Feasibility
Conduct preliminary assessment of the project, the project’s preliminary designs, zoning and/or development approvals.
- Stage 3 – Pre-construction
The Representative shall;
- Select the architectural and engineering services as well as an acceptable construction contract and value engineering.
- Conduct key trade and general contractor negotiations
- Arrive at a final capital cost budget
- Obtain approvals to proceed with construction
- Finalize trade and general contractor agreements
- Stage 4 – Construction
Participate in construction meetings and help resolve construction issues that arise account for all project costs facilitate advances from lender.
- Stage 5 – Post Construction
Clear up construction deficiencies and finalize the project’s capital cost.
- Execution of the Agreement
This Agreement, including the exhibits and schedules, made a part hereof, constitutes the entire Agreement between Owner’s Representative and Owner, supersedes and controls overall prior written or oral understandings. This Agreement may be amended, supplemented, or modified only by a written instrument duly executed by the parties.
- Term of Agreement:
- The term of this Agreement shall commence on ……………. day of ……………… 20 …………, and shall remain in full force until …………. day of ……………… 20 ………… subject to earlier termination as provided for in this agreement.
- The term may be extended automatically by continued payment for the services or with the written consent of the parties.
- In the event, either party wishes to terminate this agreement before…………., that party is hereby required to provide ……………… days’ written notice to the other party.
- Owner’s Obligations
The Owner shall (and at its/his/her/their own expense where need be);
- Authorize the Representative to act on his/her/their behalf to the Project.
- Render timely decisions on documents submitted by the Representative to avoid unreasonable delay in the orderly and sequential progress of services being offered.
- Provide an independent testing laboratory to perform all inspections, tests, and approvals of its samples, materials, and equipment required by the contract documents, or to evaluate the performance of materials, equipment, and facilities, before their incorporation into the work with appropriate professional interpretation thereof.
- Provide a single set of consolidated review comments on all deliverables.
- Provide prompt written notice upon becoming aware of any fault or defect in the Project, including any errors, omissions, or inconsistencies.
- Coordinate with cooperating jurisdictional and environmental permitting agencies as needed and issue payment for required reviews, approvals, and permits.
- Provide a final approved set of plans and specifications for the Project.
- Participate in project meetings, workshops, and conferences as described in the scope of services.
- Provide the Representative promptly, all criteria and full information as to its/his/her requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility, and expandability, and any budgetary limitations and furnish copies of all design and construction documents and standards.
- Furnish the Representative with any other available information pertinent to the Project including reports and data relative to previous designs, or investigation at or adjacent to the Site.
- Authorize the Representative to provide any additional Service as outlined in this Agreement as required.
- Inform the Representative of any other employed/contracted consultant/s and the scope of services being rendered by the consultant with regards to the Project.
- Provide the Representative with the findings and reports generated by the entities providing services to it/him/her under this paragraph.
- Arrange for safe access to and make all provisions for the Representative to enter upon public and private property as required to perform services under the Agreement.
The Owner agrees to pay the Representative ………………………………. (CD) for the Service performed under this Agreement:
Both parties acknowledge and agree that all financial and accounting records, lists of property owned by the Owner, including amounts paid, thereof, client and customer lists, and any other data and information related to the Owner’s business are confidential (“Confidential Information”). Therefore, except for disclosures required to be made to advance the business of the Owner and information which is a matter of public record, the Representative shall not, during the term of this Agreement or after its termination, disclose any Confidential Information for its benefit or the benefit of any other person, except with the prior written consent of the Owner.
- Limitation Of Liability:
The Owner agrees that all claims, whether in contract or tort, which the Owner has or hereafter may have against the Representative in any way arising out of or related to the Representative’s duties and responsibilities according to this Agreement, shall be;
- Limited to the amount as mutually agreed to by the Owner and Representative, and as described in the Certificate of Insurance attached to this Agreement, and, if not specified, the limit shall be $250,000.
- The Representative shall be entitled to rely upon the published product information from manufacturers and shall not be liable for relying on information or representation which he or she believes to be accurate.
- To the extent it is lawful, neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss, data loss, loss of goodwill, or other loss of turnover, profits, or business.
- Project Suspension and/or Abandonment
- If the Project is suspended or abandoned in whole or in part for more than a total of 60 days, whether consecutive or not, the Representative shall be compensated within 30 days of the date that an invoice is rendered for all services performed, together with reimbursable expenses then due and suspension expenses calculated in the same manner as termination expenses in clause ……………… below.
- If the project is resumed after being suspended or abandoned in whole or in part for more than a total of 60 days, whether consecutive or not, the Representative’s fee shall be equitably adjusted.
- Schedule for Services – Or – Time of Completion
The owner’s Representative acknowledges the importance to the Owner of the project schedule and agrees to put forth its best professional efforts to perform its services under this proposal in a manner consistent with that schedule. The Owner understands, however, that the Representative’s performance must be governed by sound professional practices. If requested, the Representative will develop a project schedule outlining the duration of each of the items described in the Scope of Services.
Unless otherwise specifically provided for in this Agreement, a waiver by either Party of a breach of any of the terms, conditions, covenants, or guarantees of this Agreement shall not be construed or held to be a waiver of any succeeding or preceding breach of the same or any other term, condition, covenant or guarantee herein contained. Further, any failure of either Party to insist in any one or more cases upon the strict performance of any of the covenants of this Agreement, or to exercise any option herein contained, shall in no event be construed as a waiver or relinquishment for the future of such covenant or option.
- Representative’s Right to Stop Rendering Services
- If any invoice submitted by the Representative remains unpaid by the Owner for sixty days or more from the date the invoice was submitted, the Representative may give seven days written notice to the Owner that the Representative will stop rendering services.
- If within seven days of delivery of the notice above, the Client has not paid the Representative’s invoice, or the Representative and the Owner have not agreed in writing on terms for payment of the invoice, the Representative may stop rendering services on the Project, and in that event, the Owner shall not have any claim whatsoever against the Representative for any loss, cost, damage, or expense incurred or anticipated to be incurred by the Owner as a result.
- The rights of the Representative given by under this clause are in addition to and not in substitution for any other rights the Representative may have under this Agreement or otherwise for non-payment of the Representative’s invoices by the Owner.
- Changes & Adjustments
- If through no fault of the Representative, the services covered by this Agreement have not been completed within months after the date of this Agreement, the amounts of compensation as set out in this Agreement shall be renegotiated.
- If new or additional taxes in respect of the services included in this Agreement are required by federal or provincial legislation after the Agreement is executed, the amount under this Agreement shall be adjusted to include such taxes.
- Fees and reimbursable expenses may be subject to such value-added taxes as the Federal Goods and Services Tax or Harmonized Sales Tax. The Owner shall pay to the Representative, together with, and in addition to, any fees and reimbursable expenses that become payable, any value-added taxes that become payable to the fees and reimbursable expenses as required by legislation.
- Independent Contractor
The Representative shall perform its duties hereunder as an independent contractor and not as an employee of the owner. neither owner’s representative nor any agent or employee of owner’s representative shall be or shall be deemed to be an agent or employee of the owner. owner’s representative shall pay when due all required employment taxes and income tax withholding, including all federal and state income tax on any monies paid according to this agreement.
The Representative acknowledges that the owner’s representative and its employees are not entitled to tax withholding, worker’s compensation, unemployment compensation, or any employee benefits, statutory or otherwise.
The Representative has no authorization, express or implied, to bind the owner to any agreements, liability, or understanding except as expressly set forth herein. owner’s representative shall be solely responsible for the acts of the owner’s representative, its employees, and agents.
Owner hereby agrees to indemnify the Representative, and all of Representative’s agents, employees, and representatives against any damage, liability, and loss, as well as legal fees and costs incurred as a result of the Services, rendered this Agreement or any transaction or matter connected with the Services or the relationship between Representative and Owner. This clause shall not be read to provide indemnification for any Party if a competent court of law, rendering a final judgment, holds that the bad faith, gross negligence, or willful misconduct of the Party caused the damage, liability, or loss.
- This Agreement may be terminated by either party upon seven days’ written notice should the other party fail substantially to perform as per its terms through no fault of the party initiating the termination.
- This Agreement may be terminated by the Owner upon at least a seven days’ written notice to the Representative if the Project is permanently abandoned.
- In the event of termination, the Representative shall be compensated within 30 days of the date that an invoice is submitted for all services performed to the effective termination date, together with reimbursable expenses and applicable taxes and all termination expenses as defined in clause …………… above.
- Termination expenses mean expenses directly attributable to suspension or abandonment of the Project or termination of this Agreement for which the Representative is not otherwise compensated, and in addition, an amount computed as a percentage of the total fee for the Representative’s basic services and additional services earned to time of termination, as follows:
- Twenty percent if suspension or termination occurs during the schematic design phase; or
- Ten percent if suspension or termination occurs during the design development phase; or
- Five percent if suspension or termination occurs during a phase after the design development phase.
- Relationship of the Parties:
The Parties hereby acknowledge and agree that nothing in this Agreement shall be deemed to constitute a partnership, joint venture, agency relationship, or otherwise between the Parties and that this Agreement is for the sole and express purpose of the rendering of the specific Services by the Representative to the Owner under the terms and conditions herein.
- General Provisions:
- Governing Law:
This Agreement shall be governed in all respects by the laws of the state of Winnipeg, Manitoba, Canada, and any applicable federal law. Both Parties consent to jurisdiction under the state and federal courts within the state of Canada. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory.
All communications made or notice given under this Agreement shall be in the English language.
This Agreement, or the rights granted hereunder, may not be assigned, sold, leased, or otherwise transferred in whole or part by either Party.
This Agreement may be amended only by written instrument signed by both parties.
- No Waiver:
None of the terms of this Agreement shall be deemed to have been waived by any act or acquiescence of either Party. Only an additional written agreement can constitute waiver of any of the terms of this Agreement between the Parties. No waiver of any term or provision of this Agreement shall constitute a waiver of any other term or provision or the same provision on a future date. Failure of either Party to enforce any term of this Agreement shall not constitute waiver of such term or any other term.
If any provision or term of this Agreement is held to be unenforceable, then this Agreement will be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the rest of the Agreement, valid and enforceable. If a court declines to amend this Agreement as provided herein, the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining terms and provisions, which shall be enforced as if the offending term or provision had not been included in this Agreement.
- Public Announcement:
Neither Party will make any public announcement or disclosure about the existence of this Agreement or any of the terms herein without the prior written approval of the other Party.
- The extent of Agreement/Law of Agreement:
- This Agreement represents the entire and integrated agreement between the Owner and the Representative and supersedes all prior negotiations, representations, or agreements, either written or oral.
- This Agreement shall be governed by the laws of the place of the Project.
Headings to this Agreement are for convenience only and shall not be construed to limit or otherwise affect the terms of this Agreement.
This Agreement may be executed in counterparts, all of which shall constitute a single agreement.
- Force Majeure:
The Representative is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
- Dispute Resolution;
- For purposes of this clause “dispute” means a disagreement arising out of or in connection with this Agreement, or respect of any defined legal relationship associated with it or derived from it, and includes any failure to reach an agreement where an agreement is required.
- The parties shall make all reasonable efforts to resolving a dispute by amicable negotiations and agree to provide, on a without prejudice basis, full and timely disclosure of relevant facts, information, and documents to facilitate these negotiations.
- If the parties have been unable to resolve a dispute, either party may, by written notice, require the appointment of a mediator under the latest edition of the CCDC 40, “Rules for Mediation and Arbitration of Construction Disputes”, to assist the parties to reach an agreement. Unless the parties agree otherwise, the mediated negotiations shall be conducted under those Rules as amended as follows:
- All references to “the Contract” are to be considered references to “this Agreement”;
- For references in CCDC 40 to Schedule; time; Extension of the period; and termination if no agreement; the period shall be adjusted from “10 Working Days” to read “15 calendar days”.
- If the dispute has not been resolved within 15 calendar days after a mediator was appointed under clause l(iii) above, or within such further period agreed to by the parties, the mediator shall terminate the mediated negotiations by giving written notice.
- All unresolved Disputes may, upon agreement of the Representative and Owner in writing, be referred to and finally resolved by under the latest edition of CCDC Document 40, “Rules for Mediation and Arbitration of Construction Disputes, as amended as follows:
- All references to “the Contract” are to be considered references to “the Agreement”; and.
- The applicable date referring to Substantial Performance of the Work does not apply.
- Litigation Support
In the event Representative is required to respond to a subpoena, government inquiry or other legal process related to the services in connection with a legal or dispute resolution proceeding to which Representative is not a party, Owner shall reimburse the Representative for reasonable costs in responding and compensate the Representative at its then-standard rates for reasonable time incurred in gathering information and documents and attending depositions, hearings, and trial.
- Notices Through Electronic Means Permitted:
Any notice to be given under this Agreement shall be in writing and shall be sent by email or any other electronic means, to the address of the relevant Party set out at the head of this Agreement, or to the relevant email address set out below or other email address as that Party may from time to time notify to the other Party under this clause. The relevant contact information for the Parties is as follows:
- Owner; ……………………………………………
- Owner’s Representative; ……………………………………………………………………….
- Time is of the essence;
Both parties to the contract acknowledge that time is of the essence concerning the performance of all of their respective duties.
- Successors and Assigns.
The provisions of this Agreement shall be binding upon and inure to the benefit of heirs, personal representatives, successors, and assigns of the Parties. Any provision hereof which imposes upon the Owner or Representative an obligation after termination or expiration of this Agreement shall survive termination or expiration hereof and be binding upon the Owner or Representative.
In the event of default under this Agreement, the defaulted Party shall reimburse the non-defaulting Party or Parties for all costs and expenses reasonably incurred by the non-defaulting Party or Parties in connection with the default, including, without limitation, attorney’s fees. Additionally, in the event, a suit or action is filed to enforce this Agreement or concerning this Agreement, the prevailing Party or Parties shall be reimbursed by the other Party for all costs and expenses incurred in connection with the suit or action, including, without limitation, reasonable attorney’s fees at the trial level and on appeal.
IN WITNESS WHEREOF, the Parties hereto agree to the above terms and have caused this Agreement to be executed in their names by their duly authorized officers.
Owner’s Signature: ……………………………………….
Name of Owners or Person Signing on Owner’s Behalf: …………………………………………………………
Owner’s Representative Signature: ……………………………………….
Name of Representative or Person Signing on behalf of the or Representative: ………………………………………………………….
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