PROJECT MANAGEMENT CONDITIONS OF ENGAGEMENT

CONDITIONS OF ENGAGEMENT FOR PM SERVICES

1. The Project Manager shall provide under this Agreement the standards of care, skill and diligence normally expected of a competent professional in the performance of services in respect of work similar to that contemplated by this Agreement.

2. The Client shall provide to the Project Manager, free of cost and as soon as practicable, all information in his or her power to obtain which may relate to the Services. In providing the information to the Project Manager, the Client shall ensure compliance with all applicable laws, including Copyright, and shall identify proprietary rights that any other person may have thereto. The Project Manager shall be entitled to rely upon the accuracy and completeness of all such information and data furnished through the client, or the client’s Project Managers, whether such Project Managers are engaged at the engineer’s request or not;

3. The Client may order variations to the Services in writing or may request the Project Manager to submit proposals for variation to the Services. Where the Project Manager considers a direction from the Client or any other circumstance is a Variation the Project Manager shall notify the Client as soon as practicable.

4. The Client may suspend all or part of the Services by written notice to the Project Manager who shall immediately make arrangements to stop the Services and minimize further expenditure. The Client or the Project Manager may (in the event the other Party is in material default) terminate the Agreement by written notice to the other Party. Suspension or termination shall not prejudice or affect the accrued rights or claims and liabilities of the Parties. It is recognized that the product of this agreement is CEL’s time working to assist the client with their project delivery needs. No electronic or physical deliverable shall be required for CEL to charge for the relevant services.

5. Where the Project Manager breaches this Agreement, the Project Manager is liable to the Client for reasonably foreseeable claims, damages, losses or expenses caused directly by the breach. The Project Manager’s liability under this Agreement shall be limited to loss or damage directly attributable to the negligent acts of the Project Manager, its officers, servants or agents, or its failure to provide the standards of care, skill and diligence aforesaid. The Project Manager shall not be liable to the Client under this Agreement for the Client’s indirect, consequential or special loss, or loss of profit, however arising, whether under contract, in tort or otherwise.

6. The Project Manager may purchase such incidental goods and/or Services as are reasonably required for the Project Manager to perform the Services. The cost of obtaining such incidental goods and/or Services shall be payable by the Client as disbursements, plus a 10% surcharge. The Project Manager shall maintain records which clearly identify time and expenses incurred. The Client acknowledges that sometimes known unknowns and/or unknown unknowns develop which may increase the scope of work. In such a development any additional cost(s) shall be billable to the client. The kilometric charge for vehicle use is $0.75/km. All invoices which total more than $500.00 of services and disbursements shall carry an administration charge of $50.00, with those which total more than $1000.00 carrying an administration charge of $100.00.

7. The maximum aggregate amount payable, whether in contract, tort or otherwise, in relation to claims, damages, liabilities, losses or expenses, shall be three times the percentage fee plus any base fee (exclusive of HST and disbursements) with a maximum limit of the least of; the cost of correction, fifteen percent of the cost of construction, or $50,000CDN.

8. The Project Manager at its own expense carries professional liability insurance to the extent that it deems prudent.  The errors and omissions policies are available for inspection by the Client at all times upon request.  If the Client, because of its particular circumstances or otherwise, desires to obtain further insurance to protect it against any risk beyond the coverage provided by such policies, the Project Manager will co-operate with the Client to obtain such insurance at the Client’s expense.  The Client, in consideration of the provision by the Project Manager of the services set forth in this Agreement, agrees to the limitations of the liability of the Project Manager aforesaid.  The Client shall have no right of set-off against any billings of the Project Manager.

9. (1) Each party to this agreement shall indemnify and save harmless the other party from and against all claims, actions, losses, expenses, costs, or damages that the other party may suffer, sustain, or incur arising from the other party’s negligent acts or the negligence of the other party’s employees, directors, officers, employees, sub-consultants or agents in the performance of this agreement.

(2) The client further agrees to hold harmless, indemnify, and defend the Project Manager and the Project Manager’s sub-consultants from and against any and all claims, losses, damages, liability, and costs of defense arising out of, or in any way connected with, the presence, discharge, release, or escape of contaminants of any kind.

10. If either Party is found liable to the other (whether in contract, tort or otherwise), and the claiming Party and/or a Third Party has contributed to the loss or damage, the liable Party shall only be liable to the proportional extent of its own contribution.

 11. The Client shall pay the Project Manager for the Services the fees and expenses as agreed at the time of engagement.  Where this Agreement has been entered by an agent (or a person purporting to act as agent) on behalf of the Client, the agent and Client shall be jointly and severally liable for payment of all fees and expenses due to the Project Manager under this Agreement.  It is the policy of Capacity Engineering Ltd. that payment is required before work product (examples of work product include but are not limited to: progress drawing reviews, meeting minutes, review of contract documentation, and project performance analyses such as Cost Performance Indices and Schedule Performance Indices) can be released as final; any exemption from this policy requires the approval of the Board of Directors of Capacity Engineering Limited.  Note that if the client does not proceed as expected with construction, all work to date will be charged out at our standard hourly rates, plus a lost opportunity cost of 1.5% of the estimated value of construction.

12. All amounts payable by the Client are payable upon receipt; consequences of non-payment do not apply to those projects which have their accounts in good standing within twenty (20) working days of the relevant invoice being sent to the Client.  Late payment shall constitute a default, and the Client shall pay default interest on overdue amounts from the date payment falls due to the date of payment at the rate of the Project Manager’s overdraft rate plus 2% and in addition the costs of any actions taken by the Project Manager to recover the debt.  The Project Manager shall have the right to require a retainer prior to continuing with services when payment for services is not made within 30 working days of invoicing.

13. All of the Project Manager’s products including but not limited to reports, documents, e-mails and communications are for the exclusive benefit of the client.  Any use or consequence of reliance upon or reference to these products made by a third party is the sole responsibility of that third party.  No copy of any product shall be made or distributed in absence of an accompanying copy of this statement as to the limitation of the Project Manager’s liability.

14. Intellectual property prepared or created by the Project Manager in carrying out the Services (“New Intellectual Property”) shall be available to the client for their enjoyment and use in perpetuity, however any and all Intellectual Property rights shall reside solely with the Project Manager.  The client shall protect and keep confidential all such information created and shall have no right to sell, license or otherwise disclose the Intellectual Property in any way, nor shall the Client have any rights to profit from any license sale or use of Intellectual Property of the Project Manager.

15. The Project Manager has not and will not assume any obligation as the Client’s Agent or otherwise which may be imposed upon the Client from time to time pursuant to any Act of Parliament or other Law arising out of this engagement.  The Project Manager and Client agree that for all purposes and in particular in Law, the Project Manager will not be the person who controls the place of work.

16. A note about the value of construction work:  Where PM Fees are calculated on a percentage value fee structure, this shall be applied to the total value of construction both attempted and rejected as well as that accepted.  This reflects the time and effort required to coordinate, review, and consult on works carried out, and hence is applied to the total sum of all value of construction, and not on the draw totals, bid price, or final completion price.  During the course of the works it is likely that PM Fees will be applied to Draw Amounts as a matter of convenience; this does not change or abrogate the total cost of PM services being charged against the total of all value of construction.

17.  The Parties shall attempt in good faith to settle any dispute and hereby agree to mediation followed by binding arbitration.  The parties agree that they shall use the terms of ACEC 35-1985 (R2013) to mediate or settle any dispute not resolved under these terms.

18. This Agreement is governed by the Superior Court of Ontario and Canadian law, the courts of Ontario have jurisdiction in respect of this Agreement, and all amounts are payable in Canadian dollars.  Where any clause of this Agreement is found to be invalid, this shall not be held to affect the validity of any other clause(s).

19. This agreement shall inure to the benefit of, and be binding upon, the parties hereto and their executors, administrators, successors and assigns, except as otherwise provided herein.  Neither party may assign this agreement without the prior written consent of the other.

PMCOE Contract last updated: September 19, 2023
See: www.celottawa.ca/COE for our Privacy Policy which applies to all works, including but not limited to Project Management.
The client’s attention is specifically drawn to the following section of our Privacy Policy:
“Records

Various records are created when using the Service.

We create various physical and electronic records including audio, video, and text in the course of providing the Service. This includes, but is not limited to; photos, videos, emails, phone calls, teleconferences, videoconferences (Zoom, Google Chat, etc.), letters, reports, calculations, and spreadsheets. We will maintain these records in accordance with the terms of this policy, and rely upon them in the course delivering the Service. These records are required for accuracy and to correctly reflect the scope of the Service, information provided to us, training, as a legal record of requests, positions taken, and information provided, as well as being leveraged to simplify the dispatch of work assignments.”

Contact Us

If you have any questions about this Privacy Policy, You can contact us:

By email: admin | at | celottawa.ca

By mail: 2D-220 Terence Matthews, Ottawa, ON K2M 0E2, Canada