Community_Services_Agreement_PandaDoc.txt

Community Services Agreement   
This Agreement is entered into on [Document.CreatedDate] (“the Effective Date”) between TheKey of Montreal (Home Care Assistance Montreal Inc), (the “Company” or "TheKey") and [community legal entity name] (“Community”), (each individually a "Party" and together together the “Parties”). 
a. Community operates a(n) [independent living facility/assisted living facility/home health services agency, etc.] located at [Community address] and is seeking supplemental staffing to meet its care needs. 
b. Community is seeking to supplement its staff by retaining Company, which owns and operates a private duty, caregiving services company with qualified and/or licensed caregivers when applicable. 
c. Community and Company desire that Company provide the Community with personnel to meet its service needs on the terms and conditions set forth herein. 
Agreement 
1. Term. This Agreement shall begin on the Effective Date and shall continue for twenty-four (24) consecutive months unless terminated in accordance with Section 15 of this Agreement (the “Initial Term”). Subject to Section 15, this Agreement shall automatically renew for an additional twelve (12) consecutive months and the rates will be increased, to account for the cost of living and other economic indicators, by the greater of (i) five percent (5%) or (ii) the increase in the Consumer Price Index for All Urban Consumers, U.S. City Average, as published by the Bureau of Labor Statistics of the U.S. Department of Labor (with an index base period of 1982- 1984 = 100) for the twelve month period ending on the last day of the month immediately preceding the adjustment. The Initial Term and all rollover periods shall be the “Term.” 
2. Engagement; Scope of Work. Community hereby engages TheKey as an independent contractor, and TheKey hereby accepts such engagement. Upon request by Community, TheKey shall assign such qualified Caregiver/Private Care Aide(s) (“PCA”) as is/are available for each assignment as established by local, state and federal regulations and/or authority. TheKey will use its reasonable efforts to match the skills and experience levels of its PCA to the specific needs of the Community. Community shall utilize assigned PCAs only for the specific needs requested unless Community and TheKey agree to a change in a PCA’s scope of work. TheKey’s duty to fill assignments is subject to the availability of qualified PCAs. Community shall provide sufficient information about its specific needs to TheKey so TheKey can provide the skills and experience of its PCAs to meet Community’s needs. 
3. Billing and Invoicing. 
a. TheKey will invoice Community weekly for services rendered. Information regarding rates and related matters for services is listed in Exhibit A. 
b. Given the Parties' independent contractor relationship, all feeds and costs payable to TheKey shall be made in full, without any withholding, deduction, or offset of any state or federal withholding taxes. FICA, SDI, payroll charges, income taxes, unemployment benefits/contributions, or similar costs/expenses (collectively, "Employment Taxes"). Neither Party shall be obliged to pay any Employment Taxes for the other Party's employees, if any. 
c. Community shall pay TheKey’s invoices within thirty (30) days from delivery of such invoice. Invoices not paid within such period are considered past due and may (on the first occurrence) and shall (on subsequent occurrences) be charged a finance charge of (i) one and a half (1.5%) percent per month on the unpaid balance (i.e., at an annual percentage of 18%) or (ii) the maximum interest allowed by Law, whichever is lower. Community agrees to pay any other bank or finance charges (e.g., dishonored check fees), together with reasonable attorney’s fees, for the cost of collection. If there is a past due invoice TheKey may also require Community to pay a deposit to TheKey in order for TheKey to continue providing services under this Agreement. The deposit required may be set at one (1) month’s projected revenue or higher as determined in TheKey’s sole discretion. 
4. Preferred Provider. In conjunction with this Agreement, Community agrees that TheKey shall be a preferred provider for private duty caregiving services to Community and Community will refer and/or recommend all the residents, clients, customers, invitees, and visitors (“Community Clients”) potentially needing or desiring PCA services to TheKey. This Agreement shall extend to all service offerings as of the Effective Date of this Agreement, including external Community Clients, community 1:1 care, transition packages and on-call 
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supplemental staffing (floor coverage). Community agrees to use its best efforts to cooperate with TheKey in securing referrals by solely placing TheKey marketing and advertising materials for private duty care in its facilities and on its website and social media accounts. At all relevant times, the Parties acknowledge that Community cannot require any of its Community residents to select TheKey nor bar other home care agencies or providers from providing home care services within its communities. TheKey retains the right of first refusal to decline to enter into a services agreement with any Community Client. To give effect to this Section 4, each Party hereby grants the other Party a limited, worldwide, royalty-free, non-assignable (except to an affiliate), non-sublicensable, revocable (upon the termination of the Term) intellectual property license to use the other Party’s name, trade name, logo, and promotional/marketing/advertising materials. 
5. Operational Protocol Plans. Within thirty (30) days from the Effective Date, the Parties shall have concluded a Senior Living Operational Protocol plan, including, without limitation, the Community’s Disaster Preparedness Plan. A list of items that shall be included are attached hereto as Exhibit B. TheKey’s Covid-19 plan is enclosed as Exhibit C and may, in TheKey’s discretion, be amended from time to time as the pandemic shifts or develops. The Parties mutually agree to cooperate and act in good faith in the scheduling, completion and communication of the Senior Living Operational Protocol plan. 
6. Compliance with Laws; Permits. The Parties shall comply with all applicable federal, state and local laws, codes and regulations and all municipal laws, ordinances and regulations during the Term (collectively, “Laws”). Both Parties shall obtain and maintain in effect and in good standing all professional licenses, registrations, and permits necessary for the proper execution of the services hereunder (collectively, “Licenses”), which shall be at the applicable Party’s sole cost.  
7. Restrictive Covenants. To the maximum extent permitted by Law: 
a. Confidentiality. Each Party shall keep confidential all Proprietary Information of the other Party and shall not use or disclose such information either during the Term or for a five (5) year-period thereafter, without the other Party’s express written consent. “Proprietary Information” shall mean any information disclosed from one Party to the other Party, either directly or indirectly in writing, orally, electronically, or by drawings or observation, as a consequence of or through the operation of this Agreement, that either (i) is reasonably identified as confidential by the Disclosing Party or (ii) would reasonably be understood to be secret, proprietary, or confidential, about the Company or Community’s business, products, processes, and services, including, but not limited to: the identity of customers and suppliers; customer and supplier lists, files and information; personnel files; technical data; research and research plans; process descriptions; services; market studies; financial information, projections and budgets; cost and pricing strategies and information; business methods or practices; training or training processes; internal accounting controls and procedures; information concerning receipts, revenues and other financial information; marketing and promotional programs; data; business plans; current or any future or proposed work or projects, the facts that any such work or projects are planned, under consideration, or in production, as well as any descriptions thereof; computer software and database technologies specially designed for the Company or the Community; and notes, analysis, compilations, studies, summaries, and other material prepared by or for the Company or Community containing or based, in whole or in part, on any information included in the definition of Proprietary Information). All Proprietary Information shall remain the sole and exclusive property of the disclosing Party. Notwithstanding this Section 7(a), disclosure is permitted where it is (1) in keeping with the performance of services hereunder, or (2) required by Law, provided the Party under this requirement notifies the other Party prior to disclosure (if Lawful) and only discloses the narrowest amount of Proprietary Information required. 
b. Non–Solicitation. Community and Company understand that each spends a significant amount of time, money and resources in the process of recruiting, screening, hiring and training its employees and therefore each employee is a valuable asset. During the Term and for a period of one (1) year thereafter, neither Party shall directly or indirectly solicit, induce, encourage, or attempt to solicit, induce, or encourage any employee of the other Party to leave or terminate its relationship with the other Party. Notwithstanding anything to the contrary in this Agreement, neither Party shall be prohibited from employing any such person who (i) responds to any general advertisements or postings in newspapers, industry newsletters or other public places, (ii) responds to any solicitation by third party firms that are not directed to target either Party’s employees, or (iii) is no longer employed by the other Party prior to commencement of employment discussions between the other Party and such person. In the event that Community wishes to employ any TheKey Caregiver within six (6) months from Caregiver’s termination of employment with Company, Community shall pay Company a one-time placement fee of thirty thousand dollars ($30,000.00) per Caregiver, which amount shall be due within ten (10) business days of employment of such Caregiver. Payment of such amount does not affect any liability or contractual obligations that the Caregiver may have toward Company. 
c. Non–Disparagement. During the Term and for a period of one (1) year thereafter, neither Party shall directly or indirectly, orally or in writing, privately or publicly, disparage, slander, or injure the business reputation or good will of the other Party. Among other things, neither Party will post negative online reviews, comments, or statements about the other Party, whether under the first Party’s name, anonymously, or through third parties. 
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d. Enforcement. The nature, scope, and duration of the obligations in this Section 7 are reasonable and necessary to protect each Party’s legitimate interests and are being relied upon in entering into this Agreement. If a Party breaches a provision of this Section 7, then the other Party may specifically enforce this Agreement by means of an injunction, it being acknowledged such breach will cause irreparable injury for which money damages alone are inadequate. Such injunctive relief is without the necessity of posting a bond, cash or otherwise, in excess of one hundred dollars ($100.00). The rights and remedies of the non-breaching Party cumulative. If a Court were to find a Party breached a covenant in this Section 7, then that covenant shall be extended for an additional period of time equal to the breach. If any covenant in this Section 7 is found by a Court to be invalid or unenforceable as against public policy or for any other reason, such court shall exercise its discretion to reform such covenant so the Parties are subject to the restrictive covenants to the maximum extent permitted by Law. If any Agreement term is held by a Court to be invalid or unenforceable, then all terms not held invalid or unenforceable shall continue in full force and effect and not be affected, impaired or invalidated thereby, provided the invalidity or unenforceability does not materially impair the ability of the Parties to achieve the main benefit of their bargain. 
8. Schedules and Record Keeping. All schedules for services are arranged between Community and Company. Community acknowledges that it should not alter, eliminate or add schedules directly with the PCAs. Failure to observe Company’s scheduling requirements may result in overtime rates. Additional charges incurred will be reflected on Community’s regular invoice. Community must allow Caregivers sufficient time to report all of their time and tasks on a daily basis. For purposes of time and activity tracking, Community authorizes Caregiver to use the Community’s internet/Wi-Fi and/or telephone on premises and will promptly provide all relevant passwords.  
9. Anti-Discrimination. The Parties agree not to discriminate with respect to race, age, religion, sex, sexual orientation, gender identity, creed, handicap, disability, national origin and other protected characteristics as protected by Law.  
10. Insurance. Each Party shall procure and maintain for itself and (in TheKey’s case) on behalf of each of its employees providing services hereunder reasonable, sufficient, and lawful insurance covering any other reasonably foreseeable harms which may be incurred (including for personal injury and property loss), including (i) general liability insurance and (ii) professional liability insurance with a limit of not less than $1,000,000 per occurrence and $3,000,000 aggregate. Each Party shall provide the other with a certificate evidencing such insurance within three (3) business days of the Effective Date and upon request from time to time.  
11. Representations & Warranties. Each Party (the “Representing Party”) hereby represents, warrants, and covenants to the other Party as of the Effective Date as follows: (i) the Representing Party has received or had the full opportunity to receive independent legal advice from attorneys of its choice with respect to this Agreement; (ii) the Representing Party is an entity duly incorporated/formed, validly existing, and in good standing under the laws of the jurisdiction, with requisite capacity, power and authority to enter into and carry out its obligations under this Agreement; (iii) the Representing Party has taken all necessary corporate/company action to authorize the execution, delivery and performance of this Agreement; (iv) upon full execution and delivery, this Agreement constitutes the valid and binding obligations of the Representing Party enforceable against it in accordance with its terms (except as limited or varied by equitable principles or in bankruptcy or similar insolvency proceedings); (v) the Representing Party’s execution, delivery, and performance of this Agreement will not, with or without the giving of notice or the passage of time: (A) violate any material Law; nor (B) result in the breach of any judgment, order, injunction, decree or ruling of any court or governmental authority; (vi) there is no claim, litigation, proceeding, action or investigation pending or threatened by or against the Representing Party, and there is no basis for any such claim, litigation, proceeding, action, or investigation, which might directly or indirectly adversely affect the Representing Party’s performance of this Agreement; and (vii) the Representing Party is not currently insolvent, nor will become insolvent by virtue of this Agreement, nor (in its reasonable discretion) anticipates becoming insolvent or entering into an Insolvency Proceeding during the Term. 
12. Indemnification. To the fullest extent permitted by Law, Community shall indemnify, defend, and hold Company and its officers, trustees, directors, representatives, employees, agents and affiliated entities harmless from and against any and all actions, claims, liabilities, losses, costs, damages, and expenses (including, but not limited to, reasonable attorneys’ fees and costs, physical damage to or loss of tangible property, injury or death of any person) arising out of, resulting from or caused by: (a) the negligence or intentional misconduct of Community, its employees, agents, or subcontractors; (b) the failure of Community or its employees, agents, or subcontractors to comply with the provisions of the Agreement or Law; or (c) any illness, injury, death, or property damage suffered by any person employed by Company unless such damage was caused by the gross negligence or intentional misconduct of Company or its agents (which shall be the sole extent of the Company’s liability with respect to any and all of its actions or omissions hereunder). 
13. Notices. All notices shall be in writing and shall be addressed to the Parties as set forth below. Notices shall be effective upon receipt when delivered personally or on the first business day following mailing (by certified mail or overnight express courier) when properly addressed with postage paid. 
a. To Community:  
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• Attn: ______________________________________________________  
• Address: ______________________________________________________ 
b. To Company/TheKey:  
• TheKey  
• Attn: Legal Department  
• 7777 Fay Avenue, Suite 210  
• La Jolla, CA 92037 
14. Record Keeping/Access to Records. Each Party will maintain adequate records of the services provided under this Agreement, including each PCA’s hours worked for Community, to provide back-up data for invoices issued to Community. Such books and records shall be made promptly available upon request. The Parties agree to make available to any duly authorized representative of the Department of Health and Human Services or other applicable governmental agency with authority, all contracts, books, documents and records of the Parties providing services hereunder necessary to verify the cost of the services provided under this Agreement. Similar access will also be granted for all contracts, books, documents and records subject to Section 1861 of the Social Security Act between the Parties providing services hereunder and any obligation related to such Parties. 
15. Termination. Early termination of this Agreement shall be possible on the following basis:  a. at any time with the mutual written consent of both Parties; 
b. at the conclusion of the Initial Term or any rollover term (pursuant to Section 1), if terminated by a Party by delivery of a written notice of termination between sixty (60) and one hundred and twenty (120) days prior to the then-applicable expiration date; 
c. at any time, if there has been a material breach of this Agreement that has not been cured within thirty (30) days of delivery of written notice to cure by the non-breaching Party to the breaching Party;  
d. immediately, with no notice required, if the other Party becomes the subject of an “Insolvency Proceeding,” meaning it (i) has filed a voluntary petition in bankruptcy or for reorganization under any insolvency/bankruptcy law; (ii) is the subject of an involuntary petition in bankruptcy or for reorganization under any insolvency/bankruptcy law, if not dismissed within seventy-five (75) days; or (iii) is the subject of an appointment of a receiver, trustee, or liquidator, or an assignment for the benefit of its/her creditors, or similar proceeding; or 
e. at any time, by delivery of written notice to the other, if the non-terminating Party has failed to act in conformity with reasonable, ordinary, and customary public conventions, morals and standards of decency, such as by engaging in deceptive, misleading or unethical practices, making false or misleading representations regarding the services, or permitting egregious criminal activity in its facility. In the event of early termination, the Community shall immediately (i.e., within ten (10) days) pay for all work completed by Company to the date of termination with no setoff. 
16. Relationship.  
a. As to one another, each Party is an independent contractor. Neither TheKey nor any of its employees or contractors shall constitute an employee, agent, or authorized representative of the Community, and vice versa. Neither Party has the direct or indirect power or authority to bind the other Party to any obligation to a third party, nor shall purport to have such power or authority.  
b. The Parties hereto are not and shall not be deemed to be: (i) partners in a general or limited partnership; (ii) joint venturers; (iii) affiliates; or in a (iv) principal/agent; or (v) fiduciary/principal relationship. Any reference from time to time to the other Party as a “partner” or similar term is only intended to reflect the Parties’ good-faith collaboration, not (under any circumstances) a direct or indirect legal partnership.  
17. Miscellaneous. This Agreement represents the entire understanding of the Parties with respect to its subject matter and supersedes and cancels all prior written or oral contracts, agreements, and understandings of the Parties with respect to it. Any amendment to this agreement must be in writing and signed by both Parties. Any notice shall be given to the address provided herein or in writing by the receiving Party. This Agreement may not be assigned or delegated in part or in whole, and no subcontractors (other than PCAs hired by TheKey as contractors) may be utilized to fulfill services pursuant to this Agreement without the advanced written consent of the Parties (not to be unreasonably delayed or withheld). This Agreement shall be governed by and construed in accordance with the Laws of the state of the Community. In any action relating to or arising out of this Agreement, the substantially prevailing Party (on the main issue(s)) shall be entitled to the recovery of its 
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attorneys’ fees and costs. The Parties shall do any commercially reasonable act or thing and execute any and all documents or instruments reasonably necessary or proper to effectuate this Agreement, at each Party’s own reasonable cost and expense. 
18. Force Majeure. If any Party’s ability to perform under this Agreement is affected by an event of Force Majeure, then such Party’s obligations will, to the extent affected by the Force Majeure, be suspended for so long as such Party’s ability to perform is affected thereby. “Force Majeure” means an event or force beyond the reasonable control of a Party which affects such Party’s performance hereunder, including acts of God, acts of public enemy, terrorism, wars, riots and civil disturbances, explosions, epidemics, pandemics, quarantine orders, natural disasters, fires, vandalism, changes in general and economic political conditions or the securities, credit or financial markets in general, and governmental interference or preemption in connection with a national emergency (but not a Party’s financial inability to perform). Force Majeure does not include the current COVID 19 pandemic, barring a material and adverse deterioration from the situation as of the Effective Date. 
19. Counterparts. This Agreement may be executed by facsimile or via electronic signature and in any number of counterparts, each of which shall be deemed an original and all of which, taken together, shall be deemed to one and the same instrument. Signatures may be delivered electronically, by facsimile, or by DocuSign-style software, with the same force and effect as originals.  
The Parties hereby accept and execute this Agreement on the date and year stated below:
	TheKey 
Signature 
Print Name 
Title 
Date 
	______________________________ (Community) Signature 
Print Name 
Title 
Date
	



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Exhibit A 
Subject 
	Term
	Hourly Rate – Weekdays and Weekends
	Hourly Rate: $ [hourly billing rate]/Personal Care Assistant/hour* 
Company shall assign PCAs in eight (8) hour shifts.  
Overtime shall not be scheduled by Company unless necessary due to (i) Community request or (ii) urgent need of a Community Client. Overtime shall be invoiced at time and half for shifts over 8 hours in a workday.  
*The rates for services may be amended by TheKey at any time upon thirty (30) days’ prior written notice to Community, or any other such time as the Parties agree to amend the rate in writing. 
	Minimum Charges 
	There is a 4-hour minimum billing for PCAs even if the required shift is less than 4 hours.
	Cancellations 
	If Community changes or cancels a shift less than twenty-four (24) hours before a PCA is due to report, Community shall be billed for the entire scheduled shift. 
	Mileage 
	The Community shall provide vehicles for transportation of Community Clients by PCAs. If PCAs are required to use their own vehicle, then mileage charges shall apply as per below. MILEAGE CHARGES - Community agrees to reimburse Company for the reasonable automobile traveling expenses incurred by PCA in the performance of their duties at the prevailing I.R.S. privately-owned vehicle mileage reimbursement rate. 
	Holidays 
	Holiday rates are charged on New Year’s Eve, New Year’s Day, Presidents Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and the day thereafter, and Christmas Eve day, and Christmas Day. The holiday billing rate is one and one half (1-1/2) times the regular billing rate for each hour worked.
	Additional Terms 
	Community’s supervisors will assist TheKey with evaluation of PCAs by providing performance evaluation information upon request and on a continual basis. If, at the sole discretion of Community, any PCA assigned by TheKey is reasonably considered to be incompetent or negligent, or have engaged in misconduct, Community may require such PCA to leave its premises and shall inform TheKey that said services are to be limited to hours actually worked by the PCA.
	PCA Withdrawal 
	PCAs are instructed not to put themselves at risk of bodily harm or injury in the provision of services. Community understands and acknowledges that if a PCA is made to reasonably feel threatened and/or in physical danger while performing services, with reasonable notice provided to the Community (in a non-emergency), the PCA is entitled to leave Community’s premises without exposing the PCA and/or Company to any liability. Community remains responsible for the full payment of fees for services performed on such day unless it is determined that the Caregiver left without reasonable cause.
	



Exhibit B 
Community Operational Protocols Plan 
Subject Matter Checklist 
◦ Disaster Preparedness Plan 
◦ Plans for Covid-19 Preparedness and response 
◦ Sign In/Sign Out 
◦ Dress Code 
◦ Documentation 
◦ Restrictions on care 
◦ Restroom breaks 
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◦ Resource Lists 
Exhibit C 
TheKey COVID-19 Protocol 
Senior Living Community 
COVID-19 Caregiver Protocol 
1. Caregiver COVID-19 Community Protocol. 
1. Must take your temperature and record abnormal readings prior to every shift. Caregivers who do not possess thermometers are being supplied by TheKey. 
2. Must wash your hands every hour while on shift. 
3. Must wear gloves while making physical contact with the client. 
4. Sign in at the community upon arrival. Sign out after completing a shift. Signing in and out with your full name and accurate arrival and departure time. 
5. Dress code: TheKey [clean scrubs or polo] and name badge must be worn while on the premises. 
6. Caregivers should always contact the office FIRST with any concerns at [phone number]. In the event of an emergency or urgent need while on duty, notify the [on call Community Director or Patient Services Director name and phone number].  
7. Cell phones should not be used when with the client. If you need to make a call, please do so on your break. Cell phones are not to be used in the common areas of the community. You may never leave a client alone to use your cell phone. 
8. We ask that you always speak in a language that can be understood by all patients and clients in the patient care areas. 
9. If you need help with a client, please call the front desk and a community staff member will come to assist you.  
10. If you need to use the restroom, please call the front desk and a community staff member will come to assist you. If you do not get a response in a timely manner, hit the client’s pendant/call light or call the front desk again to notify them of the need for emergency relief. You should never leave your client alone. 
11. Review the personal client care plan for your client and any other information prior to starting your shift so that you’re aware of any important updates on your client.  
12. Report any changes in conditions or concerns regarding your client to the TheKey office first, then notify the community staff only if directed by the office, before documenting it in your care notes at the end of your shift.  
13. If family members have questions regarding the client’s condition, redirect them to the TheKey Client Care Manager assigned to this client (noted in the client’s care binder).  
14. Obtain a list of activities in the community to review for every shift. Encourage your client to attend activities put on by the community. 
15. Take detailed notes of any activities attended, meals consumed, concerns or any other information in the TheKey client notebook. Please fill the care notes out in detail.  
2. TheKey Company COVID-19 Protocol. Based on the information available at this time, we are taking the following precautions: 
• We have issued guidance to our employees and caregivers regarding appropriate infection-control protocols as guided by the CDC, including: 
• effective cleaning and disinfecting surfaces 
• safety protocols 
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• travel reporting requirements 
• proper handwashing techniques 
• respiratory etiquette 
• warning signs of illness 
• We are continuously communicating with our employees regarding reporting of potential outbreaks in communities, facilities or individuals  
• We are not placing any caregiver who has traveled to a location on the CDC advisory list in the past two months for a minimum of 14 days or until cleared by a medical provider  
• We are not placing any caregiver in a new community where COVID-19 has been confirmed 
• We are not placing any caregiver with a new client for a minimum of 14 days or until cleared by a medical provider if they have been exposed to a facility where COVID-19 is being treated.  
• We are not placing any caregiver on shift who has symptoms of illness highly consistent with COVID-19 diagnosis  
• Clients and their family members with whom they have close contact with should report to their Client Care Managers if they:  
• Have traveled to a location on the CDC advisory list within the last 2 months 
• Are infected or being treated for possible infection of COVID-19 
• Our Care Team is available for any client needs in relation to COVID-19 Prep. If you are mobility limited and need support in obtaining medical supplies or basic necessities (water, gloves, etc.), please reach out to our teams to support you in the best way possible. Please note that certain supplies are highly limited.  
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