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HomeMy WebLinkAbout2002-051 r CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 2002-051 being a by-law to authorize the execution of a Ownership Operating and Maintenance Agreement with the City of Oshawa and Clarington, Whitby, Ajax and Pickering as parties to the Agreement, to set out provisions for the efficient operation and maintenance of the SYSTEM once it has been accepted by the parties THE CORPORATION OF THE MUNICIPALITY OF ClARINGTON HEREBY ENACTS AS FOllOWS: 1 . THAT the Mayor and Municipal Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington and seal with the Corporate Seal, an Ownership Operating and Maintenance Agreement with the City of Oshawa and Clarington, Whitby, Ajax and Pickering as parties to the Agreement, to set out provisions for the efficient operation and maintenance of the SYSTEM once it has been accepted by the parties; and 2. THAT the agreement attached hereto as Schedule "A" form part of this By-law. By-law read a first and second time this 2nd day of April, 2002 By-law read a third time and finally passed this 2nd day of April, 2002 :?t-~M~ John tton, Mayor .---'.-. - - -.-----' . - . : - ~-::-,- :_'~'-.~::;- - - r ~ THIS PROJECT IMPLEMENTATION AGREEMENT made this 27`s day of March, 2002 BETWEEN; THE CORPORATION OF THE TOWN OF AJAX -and ("Ajax") THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON and- ("Clarington") THE CORPORATION OF THE CITY OF OSHAWA -and- ("Oshawa') THE CORPORATION OF THE CITY OF PICKERV G - and- ("Pickering") THE CORPORATION OF THE TOWN OF WEMY Cwhitbv) WHEREAS Ajax, Clarington, Oshawa, Pickering and Whitby will enter into a Communications System Agreement with Motorola Canada Limited on March 27, 2002 (the "Motorola Agreement")for the purchase and installation of software and equipment to be combined with the existing five(S)channel 800 MHz trunked radio system currently operated by Oshawa to create a nine (9) channel 800 MHz trunked radio system to serve the geographic areas over which each municipal party has jurisdiction; AND WHEREAS Oshawa has been designated as the Project Manager pursuant to Article 6.1 of the Motorola Agreement; AND WTMR.EAS the parties wish to establish a CO,,MT FE of representatives of the parties for the purposes of overseeing and coordinating the implementation and successful completiof the Motorola Agreement and to define the Terms of Reference of that COM,�IITTE1 n o NOW' THEREFORE in consideration of the premises, mutual covenants and conditions herein contained, the parties hereto AGREE AS FOLLOWS: Section 1 Interpretation 1.1 Wherever a term set out below appears in the text of this AGREEMENT in capital letters, the term shall ha%-e the meaning set out for it in this Section 1. (a) AGREEMENT means this agreement, including '�recitals,schedules and appendices, Which form an integral part of it, as amended from time to time. (b) COtiItiIMEE means.a committee comprised of an Administrative Co-ordinator and an Operation Project Manager,both of whom will be employees of Oshawa,and one representative and one alternate representative from each of Ajax, Clarington, Pickering and Whitby,who shall be management level employees of the party so appointing them, with the roles and responsibilities provided under this AGREEMENT. (c) MOSCAD means a MOSCAD-L Low Capacity Fire Hall Alerting System described in Exhibit G as further 6 to the Motorola Agreement. (d) PRIMARY and CO-LOCATED REIbiOTE SITE means Oshawa City Hall located at 50 Centre Street South,Oshawa,Ontario. (e) SUSSCREBER EQULP.'UNT means the portable and mobile radios and act equipment owned and used by each party within the eo essory has jurisdiction. g $rephic area over which the party (fl SYSTEM means the Equipment and Software as defined in the Motorola Agreement, inclusive of the Equipment to be installed at the PMMARY and CO-LOCATED REMOTE SITE, the Pickering/Ajax Remote Centre and remote transmit/receive sites, as detailed in Exhibit C-I to the Motorola Agreement and includes the five(5)channel 800 MH2 trunked emergency radio system currently operated by Oshawa, together providing a nine(9)channel goo MHz trunked emergency radio system to serve the combined geographic areas over which each municipal party has jurisdiction (g) SYS'T'EM ACCEPTANCE means that the Acceptance Tests,as defined in the Motorola Agreement,have been successfully completed. Section 2 Committee Role 2.1 The Role of the Committee is to oversee the implementation of the Motorola Contract to the point of SYSTEM,ACCEPTANCE. 2' Oshawa, through the Administrative Co-ordinator and the Operational Project will assume the role of project Manager as set out in the Motorola Agreement nand µ•ill be responsible, following consultation with the COMMIE, for determining the achievement of Milestones as listed in xhibit C-3 to the Motorola Contract(Statement of Worts)and signing off the documents set out in Section 6.0 of that Exhibit. 2i3 In the absence of a COMMITTEE member, the party that the absent member represents may send an alternate member at any time who shall be entitled to vote in the sa capacity as the absent member. me 2.4 No evidence of the authority of any person who purports to represent the interests of a Party at a meeting of the COMMITTEE shall be required or called for. 2• The CONl-WTTEE shall have the authority to make decisions with respect to administrative or technical issues within the limits of the ,Motorola Agreement, including authorizing the execution of Change Orders thereunder by the Administrative Co- ordinator that, cumulatively, do not result in an increase of more than fve per cent (;%) of the total contract price as contained in Exhibit C-2 to the Motorola Agreement, exclusive of tines. 2.6 The parties hereby acknowledge and agree that title to all equipment under the Motorola Agreement passes to them on an equal basis u n shi ensure that sufficient insurance for full replacement value againsThe hef,loss o damage is placed on the equipment at all times from the date of shipment by equally. Motorola Canada Limited and the parties agree that they shall be responsible for the costs of such insurance 2.7 Each COMNffITEE member, with the exception of the Operational Project Manager, shall have one vote,including the Chair. 2.8 Meetings of the COMMITTEE may be called either at the request of the Chair or the request of at least two members of the COMMITTEE, in writing,on no less than three(3) days advance written notice to all of the parties. 2.9 Meetings of the COMMITTEE shall be presided over by th the Chair,who shall conduct e meetings in accordance with Robert's Rules of Order unless otherwise agreed by every member of the COMMITTEE, but in any case subject to the requirements of this AGREEMERi. 2.10 All meetings of the COMMMTTEE shall be held within the SYSTEM the geographic area serviced by 2.11 The COMMrT`ME shall not be entitled to conduct business where any less than one representative of every party is present(a "Quorum')except that where a meeting of the COMMITTEE is properly called and a Quorum cannot be achieved, the meeting will be adjourned to a date not less than three (3) days in the future, and notice of the adjournment shall be provided to each parry, Where a meeting at which a Quorum was not achieved has been adjourned, the COMMITTEE may lawfully_conduct business on the adjourned meeting date provided a majority of the members are then present. 2.12 Decisions of the COMMITTEE shall be made by resolution to be passed by a unanimous vote of those in attendance at a properly called meeting. 2.I3 The COIvMTTEE will develop a media relations plan. Section 3 Role of the Administrative Co-ordinator 3•I The administrative Co-ordinator will be responsible for the overall management of the project and will Chair the COMMITTEE, �? The Administrative Co-ordinator shall prepare a report at the completion of each Milestone and refer it to the COMMITTEE for its consideration before agreeing to the achievement of such Milestone with Motorola Canada Limited. Section 4 Role of the Operational Project Manager 4.1 The Operational Project Manager will manage the technology and installation of the infrastructure in consultation with the COMMITTEE and the Administrative Co- ordinator. This person will report to the Administrative Co-ordinator and will schedule regular meetings and distribute agendas at the request of either the Chair or two COMMITTEE members, as required in Section 2, and take the minutes of all meetings and maintain a database of agenda's and minutes from all meetings of the COMMITTEE. 4.2 The Operational Project Manager will be responsible for forwarding minutes from the meetings of the COMMITTEE to each COMMITTEE member,as well as the Fire Chief and City Managers/Chief Administrative Officers of each party, as soon as reasonably possible after each COMMITTEE meeting. 4.3 The Operational Project Manager shall develop and maintain a Project Chart and schedule of meetings for distribution to all parties and stakeholders external to the parties. Section 5 Joint Dispatch Operations 5.I The parties acknowledge that the design of the SYSTEM as described in the Motorola Agreement has been premised on the creation of two dispatch centres, one to be operated jointly by Oshawa, Whitby and Clarington, the other to be operated jointly by Pickering and Ajax(the"Proposed Centres,), 5.2 The parties acknowledge that the end of the critical design period for the SYSTEM is May 15,2002 upon which date all Equipment necessary to implement the SYSTEM will be ordered by Motorola under the Motorola Agreement. In the event that a party wishes to withdraw from the joint operation of one of the Proposed Centres or to install an additional Remote Dispatch Centre,at that party's sole expense, such party will notify all other parties of such decision in writing prior to May 15,2002. 5.3 The parties acknowledge that changes made to the SYSTEM by the rNuestcd addition of additional Remote Dispatch Centres will result in additional costs attributable solely to the party requesting an additional Remote Dispatch Centre in order for Motorola to supply the necessary additional equipment and software. There will also be design and engineering costs that will be the sole responsibility of the party requesting the additional Remote Dispatch Centre, 5.4 In the event that, as a result of the withdrawal of a party from the joint operation of one of the two Proposed Centres, the remaining parties operating the Proposed Centre determine, acting reasonably, that a change order is necessary under the Motorola Agreement due to the reduced need for software or equipment, and where Motorola demands a restocking fee or charge as a result of the return of surplus Equipment or Software (as defined in the Motorola Agreement), such cost shall be the sole responsibility of the withdrawing party. 5.5 Where a party withdraws from the joint operation of one of the Proposed Centres prior to SYSTEM ACCEPTANCE, that party's share of MOSCAD costs,as determined by the parties acting reasonably,shall be deleted and the MOSCAD costs shall be equalk, redistributed among the remaining parties operating the Proposed Centres. Section 6 Financing 6.1 The parties acknowledge that Oshawa,as the Project Manager, although not liable for payments under the Motorola Agreement,will be issuing a purchase order for the SYSTEM to Motorola and is responsible for forwarding payments to Motorola on behalf Of Ajax,Clarington,Pickering and Whitby. 6.2 Notwithstanding that Oshawa is not liable for payments under the Motorola Agreement, in the event that the parties agree to order the MOSCAD Equipment and Services,as described in the Motorola Agreement, Oshawa covenants to pay its share of MOSCAD Equipment and Services to Clarington and Whitby upon the shipping of the Equipment from Motorola's facilities. 6.3 Each of Ajax,Clarington, Pickering and Whitby agree that they are each responsible under the Motorola Agreement for the total sum as assigned to them in the attached Appendix"I". Oshawa agrees that it will be responsible for the payment of its share of MOSCAD Equipment and Services as assigned to it in Appendix"I"provided the parties agree to order the MOSCAD Equipment and Services. In the event that the parties are provided with the$I00,000 signing discount by Motorola Canada Limited,as set out in Exhibit C-2 to the Motorola Agreement,the parties acknowledge that the amounts payable by each of them as set out above shall be reduced by the discount which will be apportioned to each of the parties except Oshawa,based on its party's proportionate share of the costs under the Motorola Agreement as assigned to them in the attached Appendix"I". In the event that the parties are provided with the$75,000 discount by Motorola Canada Limited,as set out in Exhibit C-2 to the Motorola Agreement by enabling the completion of the Detailed Design Review by the date provided for in that Exhibit,the parties shall re on the manner of attribution of this discount and upon a failure to agree within fifteen(15)days following notification by Motorola Canada Limited that the discount will be provided,the issue may be settled under.the Section of this AGREEMENT titled Dispute Resolution and, until a decision is rendered thereunder,each parry shall pay its obligations under this AGR);ENMNT as though the discount had not been provided and Oshawa will hold any funds in excess of the amount owing under the Motorola Agreement for the benefit of the party or parties who shall be entitled to the discount. 6.4 Each of Ajax.Clarington, Pickering and Whitby agree to provide payment to Oshawa of the following amounts, inclusive of all taxes and exclusive of all discounts until such discounts are finalized and agreed to in accordance with this AGREEMENT,on the following schedule: 306%of the total sum owing by that party on execution of this Agreement; 60%of the total sum owing by that party on the shipping of the Equipment from Motorola's facilities; 5%of the total sum owing by that party on SYSTEM ACCEPTANCE; and 5°.10 of the total sum owing by that party on FINAL PROJECT COMPLETION, 6.5 Oshawa shall fon%ard such sums received by the parties to tilotorola in accordance with Exhibit B to the Motorola agreement but at no time shall Oshaika be liable to adN ance any sums to Motorola that have not been properly paid to it by any of Ajax, Clarington, Pickering or Whitby under this AGREEMENT. 6.6 The parties agree that Oshawa shall not be Iiable to pay interest to an advanced under this AGREEMENT unless it holds the sum advanced for a period in excess excess of 60 days before providing it to Motorola,at which point Oshawa shall pay interest in an amount equal to the amount of interest Oshawa is paid by its financial institutions on short-term deposits,if any. 6.7 If Oshawa continues to hold any sums advanced under this Agreement in excess of 120 days,either because the sums are not due and payable to Motorola,or there is a dispute with Motorola under the Motorola Agreement and Oshawa(pursuant to a written resolution approved by the COM JffTTEE)is withholding payment as a result of this dispute, such sums shall be returned to the party who advanced same to Oshawa. The return of funds shall,nevertheless,not relieve any party from its obligations under Article 6.3 or 6.4 and the parties shall resubmit such funds to Oshawa,on demand,following a written resolution approved by the COMNQTTEE authorizing payment follow dispute with Motorola. follow' win a 6.8 In the event that the SYSTEM,or any component of it, is destroyed or damaged prior to SYSTEM ACCEPTANCE, the parties will use any funds under a policy of insurance that is contracted for under this AGREEMENT to completely replace the SYSTEM or the damaged component Section 7 Dispute Resolution 7.1 Where the COMMITTEE is unable to unanimously agree on an issue, the parties respective City Managers/Chief Administrative Officers, or such persons as direct,hereby agree to meet and discuss the matter within five(S)days followi gereceip of notice by any one party to each of the others with the objective of resolving any dispute. 7' Following meetings of the parties' City Managers/Chief Administrative Officers as provided For above, in the event that a mutually satisfactory resolution is not achieved within fifteen(15)days following the receipt of the above notice by the other parties,the dispute shatl be referred to a single arbitrator, if the parries agree upon his or her identity. Should the parties be unable to agree upon the identity of an arbitrator, then the matter shall be referred to a single arbitrator,to be appointed by a Justice of the Superior Court Of Justice (Ontario). The arbitrator shall conduct the arbitration pursuant to the Arbitration Act I991 (or successor legislation)and every award or determination shall be final and binding on the parties and their successors and assigns,and shall not be subject to appeal. The arbitrator shall be allowed unfettered and unlimited discretion to determine in each and every case the solution which best balances the competing interests of the parties to the arbitration in accordance with this AGREEMENT,and he or she shall not be bound by any legal precedent in making such determination. The arbitrator shall not be bound by the provisions of the Arbitration Act 1991 in respect of his or her fees. The arbitrator shall be entitled to award all or part of his or her fees against any party in accordance with the principles which govern an award of costs against a non-successful party in a contested matter before the Superior Court of Justice. In the absence of such an a«ard by the arbitrator,the arbitrator's costs shall be borne equally by all parties. %without regard to their invok ement in the arbitration. 73 Notwithstanding that a matter has been referred to dispute resolution under the provisions Of this Section, the parties shall throuehout the period of dispute resolution endeavour Perform their respective obligations under the terms of this AGREEMENT top rs'ons their abilities and in good faith. to the best of Section 8 Term 8,1 The Term of this AGREEMENT shall continue from the date of executio SYSTEM ACCEPTANCE,at which point it shall terminate. n until Section 9 Indemnity 9" With regard to any third party claim in excess of the policy limits of any under this AGREEMENT, each party hereby a y insurance placed and every other party against all actions, suits, claims,ndem and hold harmless each and expenses including legal costs „ s, costs, charges consequence of that indemni (hereinafter the claims"), arising out of or in AGREBAENT, except that where such individual caused obligations th r provided for in this or more parties, those artier who are y moss negligence of one other parties with respect to the claims, but those part es who!are r indemnified negligent' by the continue to indemnify all innocent parties with respect TOSSIy negligent shall Provisions of this Article shall survive any termination of this AGREEMENT. terms and Section 10 Notice I O.I Any notice under this AGREEMENT shall be- in writing by regular mail or facsimile transmission upon each ti g and shall be served personally addresses: parties at the following The Corporation of the Town of Ajax 65 Harwood Ave. South Ajax, Ontario L IS 21-19 Fax: 905-683-8119 Attention: Fire Chief The Corporation of the Municipality of Clarington 40 Temperance Street BowmanviIle,Ontario LIC 3A6 Fax: 905-623-0584 Attention: Fire Chief The Corporation of the City of Oshawa 50 Centre Street South Oshawa, Ontario L I H 3Z7 Fax: 905-436-5623 Attention: CommissionerofCorporate Services The Corporation of the Cih of Pickering One The Esplanade Pickering,Ontario L 1 V 6K7 Fax: 905-839-6327 Attention: Fire Chief The Corporation of the Town of Whitbv 575 Rossland Road East r Whitby,Ontario LIN 2M8 Fax: 905-686-7005 Attention: Fire Chief Receipt of notice shall be deemed on: (a) the date of actual delivery of a hand delivered document on the last parry to be provided with the notice;or (b) the business day next following the date of facsimile transmission;or (c) five(5)days following the date of mailing of the notice; whichever is applicable. Any party may change.its address for notice by giving notice of change of address Pursuant to this Section. Section 11 General 11.1 In the event that any covenant or term of this AGREEMENT should at any time be held by any competent tribunal to be void or unenforceable,then the AGREEMENT'shall not fail,but the covenant,provision or term shall be deemed to be severable from the remainder of this AGREEN ENT, which shall otherwise remain in full force and effect. 11.2 No party or parties shall 63-11 into question, directly or indirectly,in any proceedings whatsoever in law or in equity or before a Court or any administrative tribunal, the right of the parties or any of them to enter into this AGREE�fENT or the enforceability of any term,agreement,provision,covenant and/or condition contained in this AGREEMENT, and this clause may be pleaded as an estoppel as against any such party in any proceedings. 113 Subject to the Municipal Freedom of Information and protection of Privacy Act, R.S.O. 1990 c. 41.56,(or successor legislation)the parties shall not divulge any information of which they have knowledge to be confidential whether communicated to or acquired by them in the course of carrying out the obligations or roles provided pursuant to this AGREEMENT. No such information shat I be used by either party in any way without the approval of the other party. 11.4 This AGREE.iENT contains the entire agreement between the parties with respect to the installation and implementation of the SYSTEM up until the date of SYSTEM ACCEPTANCE and it is agreed that there is no covenant, promise,agreement,condition precedent or subsequent, warrant,or representation or understanding,whether oral or written,other than asset forth in this AGREEMENT with respect to the subject matter of this AGREE save and except those as provided in the Motorola Agreement_ 9 !I.� The parties hereby agree that,although Beneficial Use, as defined in the Motorola Agreement,of the SYSTEM is permitted,no party shall actually use the SYSTEM until SYSTEM ACCEPTANCE except that Oshawa shall be entitled to continue to use its current system under the guidance and direction of Motorola Canada Limited. 11.5 The rights and obligations as contained within this AGREEMENT shall accrue and appiv severally to and against each of Ajax,Clarington,Oshawa, Pickering and Whitby and the failure on the part of one party to comply with the terms of this AGREEMENT shall n be taken as a failure on the part of any other party or of may be severally enforced. parties.The rights of each of party 11.7 The parties hereto shall with reasonable diligence do all such things and provide all such reasonable assurances as may be required to fulfil their obligations pursuant to this AGREEMENT. Each party agrees to provide whatever further documents or instruments may be considered by the other parties to be reasonably Purpose of this AGREEMENT and carry out its of this AGREEMENT provision any time during the cffurrertcy 11.8 No supplement,amendment or waiver of or under this AGREEMENT(excepting notice of change of address as contemplated in Section 10) shall be binding unless executed writing by the party or parties to be bound thereby and no waiver b a m Provision of this AGREEMENT shall be deemed or shall constitute a waiver of any other Provision or a continuing waiver unless otherwise expressly provided, 11.9 Notwithstanding anything in this AGREEMENT to the performance of any of the terms of this AGE no party shall be in default with respect due to any force ma'eure M, if any non-performance is J ,strike, lock-out, labour dispute,civil commotion,war or similar event, invasion,the exercise of military power,act of controls, inability to obtain any material or service,or u�iy cause beyond the regulations la ions or -- -- - — - control of the"arty unless such_lacko£-controLresults y reasonable resources. ndisienGV-;+, 11.10 This Agreement shall enure to the benefit of and be binding upon the parties and respective successors and assigns. their 1:N WITNESS WTEREOF each of the parties hereto has affixed its corporate seal b the its proper officers on the date inscribed on the first page of this Agreement, y hands of the execution of Schedules"A", "B", "C","p"and"E"hereto by A' i counterparts,by Pickering and Whitby,respectively. J Clarington,Oshawa, Schedule"A' Signatory Page far the Town of A'ax This is Schedule"A"to the Project Implementation Agreement between the Corporation of the Town of Ajax, the Corporation of the Municipality of Clarington, the Corporation of the City of Oshawa, the Corporation of the City of Pickering and the Corporation of the Town of Whit dated March 27,2902. by THE CORPgRA 1ON OF THE TOWN 09 d.i Ir Clerk 13 Schedule"B" Si2natory Page for the Nfunicinality of C'larington This is Schedule"B"to the Project implementation Agreement between the Corporation of the Town of Ajax, the Corporation of the Municipality of Clarington, the Corporation of the City of Oshawa,the Corporation of the City of Pickering and the Corporation of the Town of Whitbv dated March 27,2002. THE CORPORATION OF THE KUNICIPALITY OF CL.kRR'GTOti — �X Vf, Mayo " Cler 4 Schedule "C" Signatory Page for the City or0shaw This is Schedule "C° to the Project Implementation Agreement between the Corporation of the Town of Ajax. the Corporation of the Municipality of Clarington. the Corporation of the City of Oshawa. the Corporation of the City of Pickering' and the Corporation of the Town of Wh--aby dated !March 27.2002. ' THE CORPORATION OF THE CITY F OSHAWA Mayor ,S� -- Clerk _ 10 Schedule"D" Signatory Pape for the City of Pickering This is Schedule "D" to the Project implementation Agreement between the Corporation of the Town of Ajax, the Corporation of the Municipality of Clarington, the Corporation of the City of Oshawa, the Corporation of the City of Pickering and the Corporation of the Town of VvJitbv dated March 27,2002. THE CORPORATION OF THE, CITY OF PICKERING Mayor C1 Schedule E" Si natory pa a for the Town of Whitbv This is Schedule "E" to the Project Implementation Agreement between the Corporation Town of Ajax, the Corporation of the Municipality of Clarin on, the Corporation Oshawa, the Corporation of the City of Pickerin a it the g and the Co of the City of dated March 27, 2002. Corporation of the Town of Whitby TEIE CORPORATION OF THE TOWN OF WE[[TBy Mayor 15 Appendix 411" The fallo'vin table assign; the amount payable by each pam•, save for Osha►�a, under the Motorola Agreement and pursuant to Article 6.3 Of the AGREEMENT: Partv Amount Pavable Ajax $1,190.653.00 Clarington $2,196,635.00 Pickering $1,371,825.00 Whitby $1,134,746.00 Total: 5-,8-9 3 859.00 These amounts are exclusive of taxes and exclusive of any discounts that may be provided under the Motorola Agreement. it is acknowledged that change orders as agreed to by the COKM1TTEE may modify the total payable by each party under this AGREEN ENT. These amounts are premised on Exhibit C-2 to the Motorola Agreement,but account for a substitution of MTS Portable Radios for the XTS3000 Portable Radios Quoted in the contract. Each party agrees that in the event they do not choose to substitute MTS Portable Radios for the XTS3000 Portable Radios,their costs will increase. Each party agrees to pay all taxes exigible on the above amounts in accordance with each percentage of the total payable under the Motorola Agreement. pY's Oshawa's share of MOSCAD Equipment and Services under the Motorola Agreement $72,044.00,portions of which will be paid to each of Clarington,and Whitbyo us all I ows, l tares exigible on the following amounts under the Motorola Agreement: p Darn' Amount Payable Clarington $36,023.00 Whitby $36,021.00 Total: 572