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HomeMy WebLinkAboutKIN 92 009 Ernst/Young Compensa THE CORPORATION OF THE TOWN OF KINCARDINE . BY-LAW BY-LAW NO. 1992-09 A BY-LAW TO AUTHORIZE THE SIGNING OF AN AGREEMENT WITH ERNST & YOUNG FOR THE PROVISION OF PROFESSIONAL SERVICES IN CONNECTION WITH A COMPENSATION AND SENIOR MANAGEMENT STUDY. WHEREAS the Council for The Corporation of the Town of Kincardine deems it advisable to enter into an Agreement with Ernst & Young to furnish professional services in connection with a compensation and senior management study; NOW THEREFORE the Council for The corporation of the Town of Kincardine ENACTS as follows: 1. That The Corporation of the Town of Kincardine enter into an agreement with Ernst & Young to provide professional services in connection with a compensation study and a senior management study. 2. That the mayor and clerk be authorized to sign, on behalf of The Corporation of the Town of Kincardine, the agreement with Ernst & Young, which is attached to this by-law and to affix the Town's corporate seal as and when required. 3. This by-law shall come into full force and effect upon its final passage. 4. This by-law may be cited as the "Ernst & Young Consultant Services Agreement By-law". READ a FIRST and SECOND time this 16th day of January, 1992. READ a THIRD time and FINALLY PASSED this 6th day of February, 1992. . ~~~ ayor ----------------- ~/ ~ _-,--,-'~'4 . . This AGREEMENT made this 6th day of February, 1992. BETWEEN: THE CORPORATION OF THE TOWN OF KINCARDINE hereinafter called the "Town" of the First Part, -and- ERNST & YOUNG hereinafter called the "COnsultant" of the Second Part. WHEREAS The Town wishes the Consultant to furnish professional services in connection with a compensation and senior management study (hereinafter called the "Project"; NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in considera- tion of the premises and mutual promises and covenants hereinafter contained, the parties agree as follows: 1.0 GENERAL CONDITIONS 1. 01 Retainer The Town hereby retains the services of the Consultant in connection with the Project and the Consultant hereby agrees to provide the services described herein under the direction and control of the Town. In this agreement professionals and Town directly and agreement. 1. 02 Services the word Consultant shall other specialists engaged by whose names are party to mean the this The Services to be provided by the Consultant and by the Town for the project are set forth in Article 2 and such services as changed, altered or added to under Section 1.08 are hereinafter called the "Services" . 1.03 The Town shall pay the Consultant in accordance with the provisions of Article 3. 1.04 staff and Methods The Consultant shall use current state of the art principles and shall skilfully and competently perform the services and shall employ only skilled and competent staff who will be under the supervision of a senior member of the Consultant's staff. 1.05 Drawinas and Documents Subject to Section 3.2 of Article 3, drawings and documents or copies thereof required for the project shall be exchanged between the parties on a reciprocal basis. Documents prepared by the Consultant for the Town may be used by the Town, for the Project as herein described, including "as built" records. The Town has ownership of the drawings and documents. .. ./2 ,. :T . . :,,0.,:,, ,,~\>. Ernst & Young February 6, 1992 Page 2 1.06 Patents All concepts, products or processes produced by or requested from the Services rendered by the Consultant in connection with the Project, or which are otherwise developed or first reduced to practice by the Consultant in the performance of his services, and which are patentable, capable of trademark or otherwise, shall be and remain the property of the Consultant. The Town shall have permanent non-exclusive royalty- free license to use any concept, product or process, which is patentable, capable of trademark or otherwise produced by or resulting from the Services rendered by the Consultant in connection with the project and for no other purpose in connection with the Project and for no other purpose or project. 1.07 Records and Audit (a) In order to provide data for the calculation of fees on a time basis, the Consultant shall keep a detailed record of the hours worked by and salaries paid to his or her staff employed for the Project. (b) The Town may inspect and audit the books, payrolls, accounts and records of the Consultant during regular office hours with respect to any item which the Town is required to pay on a time scale or disbursements basis as a result of this agreement. (c) The Consultant, when requested by the Town, shall provide copies of receipts with respect to any disbursement for which the Consultant claims payment under this agreement. 1.08 Chancres and Alterations and Additional services With the consent of the Consultant, the Town may in writing at any time after the execution of the agreement or the commencement of the Services delete, extend, increase, vary or otherwise alter the Services forming the subject of the agreement, and if such action by the Town necessitates additional staff or services, the Consultant shall be paid in accordance with Section 3.1 for such additional staff employed directly thereon, together with such expenses and disbursements as allowed under Section 3.2. It is understood by all parties to this agreement that such arrangements must be made between the Town and the Consultant in writing prior to the additional staff or services being incurred otherwise the Consultant will have no claim against the Town. 1.09 SUSDension or Termination The Town may at any time by notice in writing to the Consultant suspend or terminate the services or any portiori thereof any any stage of the undertaking. Upon receipt of such written notice, the Consultant shall perform no further services other than those reasonably necessary to close out his or her Services. In such an event, the Consultant shall be entitled to payment in accordance with Section 3.1 for any of the Consultant's staff employed directly thereon together with such expenses and disbursements allowed under Section 3.2. . ../3 .. ."" . . ,~¡, Ernst & Young February 6, 1992 Page 3 1.09 SusDension or Termination (cont'd) If the Consultant is practising as an individual and dies before his or her services have been completed, this agreement shall terminate as of the date of his death, and the Town shall pay for the services rendered and disbursements incurred by the Consultant to the date of such termination. 1.10 Indemnification The Consultant shall indemnify and save harmless the Town from and against all claims, actions, losses, expenses, costs or damages of every nature and kind whatsoever which the TOwn, its employees, officers or agents may suffer as a result of the negligence of the Consultant, his or her employees, officers or agents in the performance of this agreement. 1.11 Insurance (a) Comprehensive General Liability and Automobile Insurance The Consultant's insurance coverage shall be a minimum of $2,000,000.00 for general liability and $2,000,000.00 for automobile insurance. When requested, the consultant shall provide the Town with proof of comprehensive general liability and automobile insurance (inclusive limits) for both owned and non-owned vehicles. (b) Professional Liability Insurance The Consultant's insurance coverage shall be a minimum of $2,000,000.00 for professional liability. When requested the Consultant shall provide the Town proof of professional liability insurance carried by the Consultant. (c) Change in Coverage If the Town requests to have the amount of coverage increased or to obtain other special insurance for this project then the Consultant shall endeavour forthwith to obtain such increased or special insurance at the Town's expense as a disbursement allowed under Section 3.2.4. It is understood and agreed that the coverage provided by these policies will not be changed or amended in any way nor cancelled by the Consultant until 60 days after written notice of such change or cancelations has been personally delivered to the Town. 1.12 Contractinc fo; Construction Neither the corporation subsidiary to construction of either directly the Project. Consultant nor any person, firm or associated or affiliated with or the Consultant shall tender for the the Project, or have an interest- or indirectly in the construction of .. ./4 ,. .'.>'" , . . ~:_<';i'; Ernst & Young February 6, 1992 Page 4 1.13 Assianment Neither party may assign this agreement without the prior consent in writing of the other. 1.14 Previous Aareements This agreement arrangements or whether written incidental to the supersedes all understandings or oral in Project. previous agreements, between the parties connection with or 1.15 ADproval bv Other Authorities Unless otherwise provided in this agreement, where the work of the Consultant is subject to the approval or review of an authority, department of government, or agency other than the Town, such applications for approval or review shall be the responsibility of the consultant, but shall be submitted through the offices of the Town and, unless authorized by the Town in writing, such application for approval or review shall not be obtained by direct contact by the consultant with such other authority, department of government or agency. 1.16 princiDals and Executives The use of principals and executives on a time basis by the Consultant, will be in accordance with Section 1.23.1 (c). 1.17 SDecialized Services The Consultant may engage others for specialized services, provided that prior approval is obtained in writing, from the Town and may add a mark-up of not more than 5% of the cost of such service to cover office administration costs when claiming reimbursement from the Town. 1.18 InsDection The Town, or persons authorized by the Town, shall have the right, at all reasonable times, to inspect or otherwise review the Services performed, under the project and the premises where they are being performed. 1.19 Publication The Consultant agrees to obtain the of the Town before pUblishing information regarding the Project. 1.20 Confidential Data consent in writing or issuing any The Consultant shall not divulge any confidential information communicated to or acquired by him, or disclosed by the Town in the course of carrying out the services provided for herein. No such information shall be used by the Consultant on any other project without the approval in writing of the Town. .. ./5 ... . ~"-<~ , . t Ernst & Young February 6, 1992 Page 5 1. 21 Arbitration (a) Any dispute, difference or disagreement between the parties hereto in relation to the agreement may, with the consent of both parties, be referred to arbitration. (b) No person shall be appointed to act as arbitrator who is in any way interested, financially or otherwise, in the conduct of the work on the Project or in the business or other affairs of either the Town or the Consultant. (c) The award of the arbitrator shall be final and binding upon the parties. (d) The provisions of the Arbitrations Act, R.S.O. 1990, Chapter A.24, as amended, shall apply. 1.22 ~ The Consultant shall perform the Services expeditiously to meet the requirements of the Town and ~hall complete any portion or portions of the Services ~n such order as the Town may require and the Town shall have the right to take possession of and use any completed or partially completed portions of the work notwithstanding any provisions expressed or implied to the contrary. The Town shall give due consideration to all designs, drawings, plans, specifications, reports, tenders, proposals and other information submitted by the Consultant, and shall make any decisions which he is required to make in connection therewith within a reasonable time so as not to delay the work of the Consultant. 1.23 Estimates. Schedules and staff List 1.23.1 Preparation of Bstimate of Fees, Schedule of Progress and Staff List When requested by the Town, the Consultant shall, within fourteen days of the execution of this agreement, provide for the approval of the Town: (a) An estimate of the total fees to be paid fo~ the Services unless such fee has been has been included as a lump sum in the Consultant's proposal for this project. (b) A schedule showing an estimate of the portion of the Services to be completed in each month and· an estimate of the portion of the fee which will be payable for each such month. (c) A staff list showing the number, classifications and salary ranges of staff and/or hourly rate ranges for principals and executives, for which the Consultant will seek payment on a time basis. The Consultant shall relate such information to the particular type of work that such staff is to perform, while employed on the Project. Such list shall designate the member of the Consultant's staff who is to be the liaison person between the Consultant and the Town. .. ./6 ----...... _. - '; -'.. \ ~ ¡.. Ii ". Ernst & Young February 6, 1992 Page 6 1.23 continued... 1.23.2 Subsequent . Changes in the Estimate of Fees, schedule of Progress and staff List The Consultant will require prior written approval, from the Town for any of the following changes: (a) Any increase in the estimated fees beyond those approved under subsection 1.23.1 (a). (b) Any change in the schedule of progress which results in a longer period provided in subsection 1.23.1 (b) ( c ) Any salary 1. 23.1 in the number, classification and the staff provided under Subsection change range of (c) . 1.23.3 Monthly Reporting of Progress When requested by the Town, the Consultant· shall provide the Town with a written report showing the portion of the services completed in the preceding month. 1.24 Additional Conditions The Consultant shall also meet with the Township of Kincardine in order to determine their thoughts on the senior management structure as it relates to the department heads which currently report to joint boards. 2.0 SERVICES 2.1 Terms of Reference The terms of reference which were issued by the Town for this project shall comprise the services to be provided by this agreement. 2.2 Consultant's ProDOsal The proposals submitted by the Consultant for this Project shall also comprise the services to be provided by this agreement. 2.3 Conflicts between Terms of Reference and ProDosal In the event there is a conflict between the Terms of Reference and the Consultant's proposals noted in Sections 2.1 and 2.2 above, the Town may choose which terms shall constitute the Services. 3 .0 FEES AND DISBURSEMENTS 3.1 ~ The Consultant agrees to provide the services outlined in Article 2 of this agreement for a maximum fee of maximum fee of $18,000. Any additional fees shall be established in advance of them being incurred by agreement of both parties and shall be on a per diem basis as outlined in the Consultant's proposal. .. ./7 ~- .. ~ ""-JtI' .' t, Ernst & Young February 6, 1992 Page 7 3.2 Disbursements (a) In addition to the fee, the Consultant shall be reimbursed at cost for all expenses properly incurred by him or her in connection with the Project, including but not limited to: vehicle use charges, travelling and living expenses, long distance telephone charges, teletype charges, printing and reproductions, advertising for tenders, special delivery and express charges, approved special consultations, and lega~SUr eys. These expenses shall not exceed $),606. ~______ ),'" 2 (b) It is understood that the Co ant will supply a Town with an estimate of these costs for approval and will not incur any without budget approval and will not exceed any approved budgets without prior approval by the Town. (c) It is understood that, regardless of (a) above, any disbursement included in the fee quoted by the consultant in their proposal or in the terms of reference will be a part of the fee and not a reimbursable expense. This Agreement shall enure to the benefit binding upon the parties hereto and their successors and assigns. IN WITNESS WHEREOF the parties hereto have hereunto set their corporate seals attested by the hands of their duly authorized officers. 4.0 of and be respective SIGNED, SEALED AND DELIVERED in the presence of ) ) THE CORPORATION OF THE TOWN ) OF KINCARDINE ) ~~ ) -; - ..::: . ~ :~= - - ._'- ....¿--^:;: ..;;.. .-..........".:: . ...~::.. ,$" - -'- ....,.... ~. '",- ~,,~...... I'.........':'..,"'...~.... ) ) ) ) ) ) ..-..-....~- _""'~"-id-;-~,