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HomeMy WebLinkAbout95-121 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 95- 121 Being a By-law to authorize a contract between the Corporation of the Municipality of Clarington and Malone Given Parsons Ltd. to be Lead Consultant for the Geographic Information System. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1 . THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington with the Corporation Seal, a contract between Malone Given Parsons Ltd. and said Corporation. By-law read a first and second time thisllthday of September, 1995 . By-law read a third time and finally passed this 11th day of September, 1995 . Acting Mayo r Cl rk MALONE GIVEN PARSONS LTD. (Hereinafter called the "Lead Consultant") OF THE FIRST PART AND THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (Hereinafter called the "Client") OF THE SECOND PART WITNESS THAT: WHEREAS, the Client desires to engage the Lead Consultant to render certain technical and professional services described in the proposal prepared by the Lead Consultant for the Client in the Document entitled Municipality of Clarington GIS Design dated December 1994 and the Municipality of Clarington Proposal Call for GIS RF94-6 issued November 1994, copies of which are attached hereto and forms part of the agreement as Schedule "A" and Schedule`B", as amended, respectively. NOW THEREFORE the parties hereto do mutually agree as follows: 1. ENGAGEMENT OF LEAD CONSULTANT 1.1 The Client hereby agrees to engage the Lead Consultant to perform certain research, consulting, technical and professional related services during the term set out herein in accordance with the workplan in the attached Schedule"A" and Schedule`B", as amended, and the Lead Consultant hereby agrees to perform the services hereinafter set forth in connection with the preparation of a study to assess and develop appropriate policies, regulations and other measures. 2. ADMINISTRATION In this Agreement: 2.1 The"CLIENT" means the Corporation of the Municipality of Clarington. 2.2 The"LEAD CONSULTANT" means Malone Given Parsons Ltd. 2.3 "DESIGNATED CLIENT REPRESENTATIVE" means the System Manager. 3. MANAGEMENT SCOPE AND SERVICES Throughout the term of the agreement the Lead Consultant will report to the Designated Client Representative. 4. UNDERTAKING THE STUDY In undertaking the Study, the Lead Consultant will complete all work as outlined in the attached Schedule"A", as amended. Page 2 5. FINAL REPORT In addition to preparing interim reports and analyses, as provided for in Schedule "A", as amended, the Lead Consultant will produce in co-operation and in collaboration with the client: Phase I Detailed Requirements Document Database and System Design Document Implementation Plan 6. REPORTING THE FINDINGS 6.1 The Lead Consultant shall report its findings to the Client in the manner indicated in the Study Program contained in Schedule"A', as amended. 6.2 At the completion of the project the Lead Consultant shall make available to the Client the base material prepared by the Project Team in the connection with the project. 6.3 It is agreed that the Lead Consultant will provide copies of all progress reports, and the final report, in accordance with the provisions of Schedule"A', as amended. 7. MEETINGS The Lead Consultant shall meet with the Client at times mutually satisfactory to both during the period of this Agreement, to discuss reports and to explain the findings the recommendations as outlined in the Schedule"A', as amended. 8. TIME OF PERFORMANCE 8.1 The services of the Lead Consultant are to commence on May 3 0, 1995. The services of the Lead Consultant and the obligations of the Client shall be undertaken and performed in such sequence as to assure the completion of Phase I of the Study for the Client within six(6) months of the commencement date of the Study. 8.2 Where the Lead Consultant requires an extension of time to complete the work, the Lead Consultant shall,within a reasonable time prior to the date for completion, give the Client notice in writing. The time for completion shall not be varied except by the Client in writing. 9. COST The Client covenants with the Lead Consultant that the Lead Consultant will be paid for and in respect of its work under this Agreement the collective sum of sixty thousand five hundred dollars ($60,500 = $55,000 consulting fees+ $5,500 disbursements) for Phase I, subject to such additions and deductions as may be properly made under the terms contained in Section 12 hereof. 10. BILLING 10.1 The Lead Consultant shall invoice the Client monthly for any portion of the work performed during the month, and the Client will make interim payments to the Lead Consultant within thirty (30) days of receipt of such invoices, up to a maximum of 90% of the total contract for Phase I as specified in paragraph 9 hereof. Page 3 10.2 Upon completion and acceptance of the work and the final report by the Designated Client Representative and after receipt of a final invoice, the Client will pay the Lead Consultant the outstanding 10% of the total contract price for Phase I, as specified in paragraph 9 hereof, for the work completed. 10.3 Every invoice shall include: 10.3.1 the name of the Lead Consultant; 10.3.2 the date and file reference of this Agreement; 10.3.3 the amount for which the invoice is rendered; 10.3.4 the total amount invoiced under this Agreement to date; 10.3.5 the total amount invoiced to date as a percentage of the total specified in paragraph 9; 10.3.6 the name of each person performing professional services for which payment is requested in the invoice 10.3.7 the number of days/hours/worked by each; the per diem/hour fee; details of any disbursements; 10.3.8 a description of the work performed; and 10.3.9 an estimate of the work which has been performed to date as a percentage of the total work. 10.4 Failure to provide the appropriate information as part of the invoice may result in delays or total rejection of the invoice. 10.5 No interim or final payment will be made until the Lead Consultant has demonstrated to the Designated Client Representative that the work referred to in the invoice has been performed. 11. CANCELLATION 11.1 In the event that work performed by the Lead Consultant is unsatisfactory to the Client, this contract may be terminated by the Client and payment will be made to the Lead Consultant for work performed plus any other mutually agreed upon expense incurred as a result of the termination and winding down of work and services performed or undertaken in accordance with this Agreement prior to such cancellation. 11.2 If there is any dispute between the Lead Consultant and the Client as to the amount to which the Lead Consultant is entitled under subparagraph 11.1, the amount shall be determined by a single arbitrator chosen in writing by the Lead Consultant and the Client and the decision of the arbitrator shall be final and binding. In the absence of agreement as to the choice of the arbitrator, the Arbitrations Act shall apply. 12. CHANGES 12.1 The Client may, from time to time, request changes in the scope of the service of the Lead Consultant to be performed hereunder. Where in the opinion of the Lead Consultant such changes will involve any increase or decrease in the amount of the Lead Consultant's compensation,the Lead Consultant shall give written notice to the Client to this effect and such amounts must be mutually agreed upon in writing by and between the Client and the Lead Consultant in advance of performance of the work. Page 4 12.2 If it shall become necessary for the Lead Consultant to make any changes in any designs, drawings, plans or reports for any part of the work for reasons over which it has no control, or if the Lead Consultant is put to any extra work, cost or expenses by reason of any act or matter over which it has no control, the Lead Consultant shall be compensated for such changes or extra work on a "Per Diem Rate" basis in accordance with those represented in Schedule "A"; provided that prior to the commencement of such changes or extra work, the Lead Consultant shall notify the Client in writing of its intention to make such changes or carry out such extra work and receive approval from the Client for the same, and that the Lead Consultant shall keep separate cost records in respect to such changes or extra work. 12.3 If the project or any part thereof is abandoned by the Client at any stage prior to completion, or if any stage of the Lead Consultant's work is unduly delayed for reasons beyond its control, the Lead Consultant shall be entitled forthwith to render an account for their services and the Client will compensate the Lead Consultant for all work completed to the point of abandonment or undue delay. 13. PERSONNEL 13.1 All work shall be performed by the persons named in Schedule"A" with assistance as required by junior professional and technical staff. Persons of equivalent qualifications may be substituted only with the written consent of the Client. 13.2 No assignment or sub-contract shall relieve the Lead Consultant from any obligations under this Agreement or impose any liability upon the Client to any assignee or sub-contractor. 14. INDEMNIFICATION AND LIABILITY 14.1 The Lead Consultant shall indemnify and save harmless the Client for any actions, causes, claims or demands whatsoever relating to breach of third party copyrights. 14.2 No report, document, or other data produced in whole or in part with project funds shall be copyrighted by the Lead Consultant, neither shall any notice of copyright be registered by the Lead Consultant in connection with any report, document, or other data developed by it for the project. 14.3 All reports, drawings, plans, specifications and other data, information and material collected, compiled, drawn, produced and submitted are owed by the Client, and copyright therein shall rest with the Client. 14.4 In no event shall the Client by liable for any bodily injury, death or property damage to the Lead Consultant,its employees, agents or associates or for any claim, demand or action by any third party against the Lead Consultant, its employees, agents or associates arising out of or in any way related to this Agreement or the work, unless the same is caused by the negligence of an employee or agent of the Client while acting within the scope of his employment. 14.5 In no event shall the Client be liable for any incidental, indirect, special or consequential damages or loss of use, revenue or profit of the Lead Consultant, it employees, agents or Associates, arising out of or in any way related to this Agreement or the work. Page 5 15. CLIENT OBLIGATIONS 15.1 The Client shall give due consideration to all plans, drawings, reports, proposals and other information provided by the Lead Consultant and shall make any decisions which it is required to make in connection therewith within the time agreed upon by the Lead Consultant and the Client to enable the Lead Consultant to proceed according to the timetable. 15.2 Where it is necessary for any plans, drawings, reports, proposals and other information provided by the Lead Consultant to be reviewed or approved by any other agency, authority or department of Government, the Client shall notify the Lead Consultant of the need for such review and approval and undertake to secure the written response of any such agency, authority or department of Government within a time agreed upon by the Lead Consultant and proceed according to the timetable. The Lead Consultant shall not be liable for any changes required by the Client or by such agency, authority or department of Government unless they are within their Terms of Reference and can be effected within both the timetable and the fee stated in Paragraphs 8 and 9. 15.3 In the event that any studies, duties or decisions of the Client or review or approval by any agency, authority or department of Government is not furnished to the Lead Consultant within a reasonable time agreed upon by the Lead Consultant and the Client to enable the Lead Consultant to proceed according to the timetable, the Client and the Lead Consultant shall jointly determine whether the work should be continued or abandoned. 15.4 Any and all plans, documents, reports, drawings and designs furnished by the Lead Consultant are based on the assumption that all information supplied by the Client or on behalf of the Client is correct, and the Lead Consultant shall not be liable for any loss or damage to the Client arising from any inaccuracy in such information. The Lead Consultant shall be entitled to make any necessary change or changes in the plans, specifications, drawings or designs at the Client's expense if any such information should be erroneous or inaccurate. 16. ASSIGNABILITY THE LEAD CONSULTANT SHALL NOT assign any interest in this Agreement, and shall not transfer any interest in the same(whether by assignment or notation), without the prior written consent of the Client hereto; provided, however, that claims for money due or to become due the Lead Consultant from the Client under this Agreement may be assigned to a bank, trust company, or other financial institution without such approval. Notice of any such assignment or transfer shall be furnished promptly to the Client or the Lead Consultant at the addresses noted in Paragraph 25. 17. CONFLICTS OF INTEREST 17.1 The Lead Consultant shall ensure that the work can be undertaken and completed without a conflict of interest. It is agreed that during the course of the work the Lead Consultant shall not undertake any work for another client that could reasonably result in a conflict of interest, without the prior written consent of the Designated Client Representative. 17.2 For the term of this Agreement, and twelve (12) months following termination, the Client agrees not to solicit or employ any employee or representative of the Lead Consultant involved in the work;provided that in the event of such breach, the Client agrees that the Lead Consultant shall be entitled to injunctive relief restraining such breach,without proving or showing any actual damage, in addition to other remedies available to the Lead Consultant, unless the parties agree otherwise. Page 6 18. FINDINGS CONFIDENTIAL Any reports, information, data, etc., given to or prepared or assembled by the Lead Consultant under this Agreement will be confidential and shall not be made available to any individual or organization by the Lead Consultant and will be the sole property of the Client. The confidentiality obligation contained herein shall not apply to: (a) information that is in the public domain; or (b) information that the Lead Consultant is legally required to disclose. 19. NOTICES Any notice required to be given by this Agreement shall be given to the party to whom it is addressed: 19.1 By personal delivery to that party, in which case the notice shall be deemed to have been given on the day of the delivery; or 19.2 By prepaid registered post to the postal address noted in Section 25 herein, in which case the notice shall be deemed to have been given with the expiration of the fifth day after the date of mailing; provided that in the event of a disruption in postal service, notice shall be given by personal delivery only. 20. DESIGNATED CLIENT REPRESENTATIVE The Designated Client Representative shall be the person or title shown on the cover page of this Agreement, but the Client may designate a different representative by notice in writing to the Lead Consultant. 21. INSPECTION The Client and its representatives shall be entitled to review, during normal business hours, all results of the work and all records, documents, reports, accounts, or other materials of the Lead Consultant relating to the work. 22. NO WAIVER The failure of any parry to enforce at any time or for any period of time the provisions hereof shall not be construed to be a waiver of such provisions or the right of such party thereafter to enforce each and every such provision. Waiver of any breach shall not be deemed a waiver of any other breach, even if similar in nature. 23. ENTIRE CONTRACT The Agreement,including Schedule"A' and"Schedule B", as amended, constitutes the entire Agreement between the parties. There are no prior or collateral agreements or representations. This Agreement shall not be varied except by a document in writing, dated and signed on behalf of the Client and by the Lead Consultant. A copy of any executed letter of variation shall be supplied to the Lead Consultant. Page 7 24. APPLICABLE LAW This Agreement shall be governed by the Laws of the Province of Ontario. 25. ADDRESSES ANY NOTICE as provided for under this Agreement may be served or given: (i) By the Client to the Lead Consultant by mailing the same by Prepaid Registered Post addressed to the Lead Consultant; Elizabeth Ottaway, Partner Malone Given Parsons Ltd. 48 Perry Street Woodstock, Ontario N4S 3C3 (ii) By the Lead Consultant to the Client by mailing the same by Prepaid Registered Post addressed to: Kim Owen Computer Systems Manager Municipality of Clarington 40 Temperance Street Bowmanville, Ontario L 1 C 3A6 IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and year first herein before written. SIGNED, SEALED AND DELIVERED THIS_5 DAY OF —91995. MALONE GIVEN PARSONS LTD. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON EfizabW Ottaway, Partner Mayor C rk