term oaa - sc 2011 07 15 · term supplementary conditions - 3 - term oaa – sc 2011 07 15...

Term Supplementary Conditions

Term OAA – SC 2011 07 15

GENERAL

The Ontario Association of Architects Standard Form of Contract for Architect’s Services, Document 600, 2008 consisting of the Agreement, Definitions, General Conditions Parts 1 to 12 inclusive, and Schedules governing same is hereby made part of these Contract Documents, with the following amendments, additions and modifications. These Term Supplementary Conditions have been developed by Ontario Infrastructure and Lands Corporation (“OILC”), in collaboration with the Strategic Opportunities Committee (SOC) which represents the formalized liaison between OILC and the design, engineering and construction industry. Where any article, paragraph or subparagraph in the Agreement, Definitions or General Conditions of the Ontario Association of Architects Standard Form of Contract for Architect’s Services, Document 600, 2008 is supplemented, amended, deleted, voided or superseded by any of the following, the provisions of such articles, paragraphs or subparagraphs not so amended, voided, deleted or superseded shall remain in effect. Where any article, paragraph or subparagraph in the Agreement, Definitions or General Conditions of the Ontario Association of Architects Standard Form of Contract for Architect’s Services, Document 600, 2008 is deleted by any of the following, the numbering of the remaining article, paragraph or subparagraph shall remain unchanged, and the numbering of the deleted item will be retained, unused. The Ontario Association of Architects Standard Form of Contract for Architect’s Services, Document 600, 2008 is hereby adapted for use by and reflects the agreed terms and conditions between the client and Prime Consultants.

All references in the Ontario Association of Architects Standard Form of Contract for Architect’s Services, Document 600, 2008 to the “Architect” shall be replaced with “Prime Consultant”.

All references in this contract to the "client" shall refer to the entity identified in A2 of the “Agreement” section of the Document 600, 2008, but all rights, benefits, or entitlements reserved to the "client" under the terms of this contract shall equally accrue to and be jointly or severally enforceable by OILC, Her Majesty the Queen in Right of Ontario, and the client.

AMENDMENTS TO THE ONTARIO ASSOCIATION OF ARCHITECTS STANDARD

FORM OF CONTRACT FOR ARCHITECT’S SERVICES, DOCUMENT 600, 2008

AGREEMENT

ARTICLE A-1 – TERM OF CONTRACT

Delete A-1 entirely and substitute the following:

Term Supplementary Conditions - 2 -

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This contract shall commence on _______________________________ and end on ______________________________________, unless otherwise terminated in accordance with the terms of this contract (“Term”).

ARTICLE A-4 – PROVISION OF THE SERVICES AND WORK ORDER


The Prime Consultant shall provide the professional services as requested and authorized by the client, from time to time, in accordance with the terms and conditions of this contract. The client may request and authorize the provision of professional services from time to time by means of a Work Order signed by the client.

ARTICLE A-7 – PRIME CONSULTANT’S SERVICES

Delete the words “the following schedule(s) affixed to this contract ________,” and replace with “Schedule “A” affixed to this contract.”

ARTICLE A-8 – CLIENT’S INFORMATION

Delete the words “the following schedule(s) affixed to this contract ________,” and replace with “Schedule “B” affixed to this contract.”

ARTICLE A-9 – CONSULTANTS ENGAGED


The Prime Consultant and the client will engage Consultants as listed in Schedule “C” affixed to this contract. The Prime Consultant shall coordinate the services of all of the Consultants listed in Schedule “C” affixed to this contract. The Prime Consultant and client shall each notify the other in writing of any proposed change of Consultant and shall not make such change without the prior written consent of the client, which consent shall not be unreasonably withheld.

ARTICLE A-10 – PRIME CONSULTANT’S FEES


For the Prime Consultant’s services as outlined in Schedule “A” identified in Article A-7, the fee shall be computed as outlined in Schedule “D” affixed to this contract.

By entering into this contract, the client designates the Prime Consultant as one of several term Prime Consultants, but does not guarantee or give any assurance that the client will authorize the Prime Consultant to perform any services or receive any payment pursuant to a Work Order. The Prime Consultant acknowledges and agrees that the client may elect to award contracts for services to other term Prime


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Consultants or otherwise accomplish its desired services without the Prime

Consultant’s participation and unless confirmed in a Work Order signed by the client. The Prime Consultant further acknowledges and agrees that it has no reasonable expectation of work or payments beyond that which may be specifically described in a properly executed Work Order.

The client will pay the Prime Consultant the fee specified in the Work Order and subject to the terms stipulated in the applicable Work Order and this contract.

ARTICLE -11 – ADMINISTRATIVE CHARGE

Delete A11 entirely.

ARTICLE -12 – AUTOMOBILE TRAVEL COSTS


A-12 The rate for calculating automobile travel costs shall be the rate specified in the then current travel directive issued by the Government of Ontario, but such rate shall only be paid for the portion of travel distances greater than 20 kilometres per one-way trip.

ARTICLE -13 – RETAINER FEE

Delete A13 in its entirety.

ARTICLE -14 - INVOICES

Amend A14 by deleting the phrase “upon receipt” and substituting therefore the phrase “within 45 calendar days following the approval”.

ARTICLE -15 - INTEREST

Amend A15 by deleting the phrase “of ______% per annum, commencing ________ days after the date that the Prime Consultant submits the invoice” and substitute the with the following words: “established from time to time by the Minister of Finance (Ontario) commencing 30 calendar days after the date when the payment became due until payment is made.

ARTICLE A-18 – CONFLICT OF INTEREST

Delete A18 entirely and substitute the following:

18.1 The Prime Consultant, all of the Consultants, and any of their respective advisors, partners, directors, officers, employees, agents, and volunteers shall not engage in any activity or provide any services where such activity or the provision of such services creates a conflict of interest (actually or potentially, in the sole opinion of the client) with the provision


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of the professional services pursuant to this contract. The Prime

Consultant acknowledges and agrees that a conflict of interest includes the use of confidential information where the client has not specifically authorized such use.

18.2 The Prime Consultant shall disclose to the client, in writing, without delay any actual or potential situation that may be reasonably interpreted as either a conflict of interest or a potential conflict of interest, including the retention of any Consultant that is directly or indirectly affiliated with or related to the Prime Consultant.

18.3 The Prime Consultant covenants and agrees that it will not knowingly hire or retain the services of any employee or previous employee of the Ontario Realty Corporation, Ontario Infrastructure Projects Corporation, OILC or the Ontario Public Service where to do so constitutes a breach by such employee or previous employee of the Public Service of Ontario Act and its Regulations as they may be amended from time to time.

18.4 A breach of this Article by the Prime Consultant, any of the Consultants, or any of their respective advisors, partners, directors, officers, employees, agents, and volunteers shall entitle the client to terminate this contract, in addition to any other rights and remedies that the client has in this contract, in law, or in equity.

ARTICLE A-19 - CONFIDENTIALITY

Add new Article A-19- CONFIDENTIALITY as follows:

19.1 The Prime Consultant agrees that it shall, both during or following the term of this contract, maintain the confidentiality and security of all confidential information and personal information, and that it shall not directly or indirectly disclose, destroy, exploit, or use any confidential information or personal information, except where required by law, without first obtaining the written consent of the client. The Prime

Consultant may disclose confidential information provided to the Prime

Consultant by the client to any Consultant, if the Prime Consultant discloses only such information as is necessary to fulfill the purposes of this contract and the Prime Consultant has included a commensurate confidentiality provision in its contract with the Consultant.

19.2 The Prime Consultant acknowledges that it will comply with all requirements of the Personal Information Protection and Electronic

Documents Act. The Prime Consultant acknowledges that the OILC and Her Majesty the Queen in Right of Ontario are bound by the provisions of the Freedom of Information and Protection of Privacy Act (“FIPPA”). The Prime Consultant further acknowledges that OILC and Her Majesty the Queen in Right of Ontario may be required to disclose any or all of the


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confidential information and personal information in the event that it is compelled to do so by law, through a request under FIPPA, or by the rules of any applicable regulatory authority.

19.3 For the purposes of this Article, personal information has the same definition as in subsection 2(1) of FIPPA and includes an individual’s name, address, age, date of birth, sex, and religion, whether recorded in printed form, on film, by electronic means, or otherwise and disclosed to the Prime Consultant, and confidential information means all the information or material of OILC and Her Majesty the Queen in Right of Ontario that is of a proprietary or confidential nature, whether it is identified as proprietary or confidential or not, including but not limited to information and material of every kind and description (such as drawings and move-lists) which is communicated to or comes into the possession or control of the Prime Consultant at any time, but confidential information shall not include information that:

.1 is or becomes generally available to the public without fault or breach on the part of the Prime Consultant, including without limitation breach of any duty of confidentiality owed by the Prime Consultant to the client or to any third party, but only after that information becomes generally available to the public;

.2 the Prime Consultant can demonstrate to have been rightfully obtained by the Prime Consultant from a third party who had the right to transfer or disclose it to the Prime Consultant free of any obligation of confidence;

.3 the Prime Consultant can demonstrate to have been rightfully known to or in the possession of the Prime

Consultant at the time of disclosure, free of any obligation of confidence; or

.4 is independently developed by the Prime Consultant without use of any confidential information.

DEFINITIONS

Revise definition of “General review” so it reads as follows:

GENERAL REVIEW

General review means review during visits to the Place of the Work (and where applicable, at locations where building components are fabricated for use at the project site) at intervals appropriate to the stage of the construction that the Prime


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Consultant in its professional discretion, considers necessary to become familiar with the progress and quality of the Work and to determine that the construction, enlargement or alteration is in general conformity with the design governing the construction enlargement or alteration and reporting thereon.

Add to the end of the definition of “Project” the words “as specified in a Work

Order.”

Add the following definitions, in appropriate alphabetical order:

AFFECTED PARTY

Affected Party and Affected Parties have the meaning set out in GC 2.6;

CONTRACTOR SECURITY OFFICER

Contractor Security Officer or “CSO” means the individual designated by Prime

Consultant as Prime Consultant’s representative who will liaise with the client for the purposes of coordinating the Security Clearance Checks for the Prime

Consultant and all Affected Parties and who will have overall responsibility for carrying out Prime Consultant’s security screening obligations outlined in this contract, and to whom any additional information deemed relevant to the required Security Clearance Checks, may be communicated during the contractor security screening process

PRIME CONSULTANT

Prime Consultant means the individual or entity engaged by the client and identified as such in the Agreement. The Prime Consultant includes the holder of a certificate of practice issued by the Ontario Association of Architects under the Architects Act; the holder of a certificate of authorization issued by Professional Engineers of Ontario under the Professional Engineers Act, and an individual who is registered with the Association of Registered Interior Designers of Ontario, or an entity that operates under the direction of an individual who is registered with the Association of Registered Interior Designers of Ontario.

RECORD DRAWINGS

Record drawings means the drawings that are prepared by the Prime Consultant by revising the editable CAD files prepared to current OILC standards to reflect changes from the construction drawings made during construction based on:

• content of as built drawings prepared by the contractor; and

• changes in response to site instructions, change orders, change directives and other direction given by the Prime Consultant.


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SECURITY CLEARANCE CHECK

Security Clearance Check includes all of the following: (a) a written declaration by an individual disclosing any unresolved charges

and previous convictions under the offense provisions of federal statutes, including but not limited to the Criminal Code, R.S.C. 1985, C. C-46, as amended, for which a pardon under the Criminal Records Act, R.S.C. 1985, C. C-47, as amended, has not been granted;

(b) a police records check through the Canadian Police Information Centre and provincial and municipal police force records for information about the individual in relation to:

• convictions under the offense provisions of federal statutes, including but not limited to the Criminal Code, R.S.C. 1985, C. C-46, as amended, for which a pardon under the Criminal Records Act, R.S.C. 1985, C. C-47, as amended, has not been granted;

• findings of guilt in relation to federal statutes for which a court has granted a discharge;

• charges laid under the offense provisions of any federal statutes that are unresolved; and

• records of judicial orders in effect made in relation to the offense provisions of federal statutes;

(c) a police records check in other jurisdictions as deemed necessary by the information provided to the Security Services and Contingency Planning Branch of the Ontario government (SSCPB) during a Security Clearance Check; and

(d) if deemed necessary by SSCPB considering the circumstances of the Project, a driving records check.

SSCPB

SSCPB means the Security Services and Contingency Planning Branch of the Ministry of Government Services, or any successor thereof.

VENDOR PERFORMANCE GUIDELINES

Vendor Performance Guidelines mean guidelines developed by the client in connection with the Vendor Performance Program.

VENDOR PERFORMANCE PROGRAM

Vendor Performance Program means the client’s policy for monitoring, evaluating and recording vendor performance, as same may be amended or


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replaced from time to time. The Vendor Performance Program establishes a standard methodology for the incorporation of a vendor’s past performance as a criterion in assessing that vendor’s bids or proposals for future work with the client.

VENDOR PERFORMANCE SCORECARD

Vendor Performance Scorecard means a scorecard developed by the client in connection with the Vendor Performance Program

WORK ORDER

Work Order means the Project specific work authorization issued by the client as described in Article A-4 of this contract.

GENERAL CONDITIONS

GC 1 CLIENT’S RESPONSIBILITIES

.1 Delete the third sentence of GC1.1

.2 Delete GC 1.2.5 entirely




GC 2.2 PRIME CONSULTANT’S RESPONSIBILITIES

.1 Delete GC 2.2 entirely and substitute new GC 2.2:

2.2 The Prime Consultant shall maintain and keep accurate Project records (which means all tangible records, documents, computer printouts, electronic information, books, plans, Construction Documents, accounts, Record drawings or other information relating to the Work) in its office in Ontario in accordance with requirements of law, but in any event for not less than 6 years from Substantial Performance of the Work or until all claims have been settled. During this time, the Prime Consultant shall allow the client and OILC access to the Project records during normal business hours upon the giving of reasonable notice. The Prime

Consultant shall include equivalent provisions to those provided herein in each consulting contract and shall require the


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Consultants to incorporate them into every level of contract thereunder for any part of the Work.

.2 Add new GC 2.3 to GC 2.14 as follows:

2.3 Prime Consultant acknowledges that the Ontario government has implemented a policy that requires Prime Consultant and all individuals who will be providing any services on behalf of the Prime Consultant doing business with the Ontario government to undergo Security Clearance Checks. The Security Clearance

Checks are administered by the SSCPB, of the Ministry of Government Services.

2.4 Prime Consultant shall comply with the above-noted policy.

Should there be any discrepancy between the above-noted policy and the security screening steps outlined herein, the former shall govern. Prime Consultant shall ensure that all Prime Consultant’s staff and Consultants are in full compliance with the above-noted policy.

2.5 Prime Consultant shall ensure that the screening provisions

outlined herein are included in each subcontract Prime Consultant enters into with its Consultants to provide any services related to the Project. In addition, Prime Consultant shall require its Consultants to include the screening provisions outlined herein into every level of contract thereunder with each of their respective consultants for any services related to the Project.

2.6 Prime Consultant acknowledges that SSCPB will perform Security

Clearance Checks on Prime Consultant, including its directors, officers, owners, partners, if applicable, and shareholders (if a privately held corporation and as requested by SSCPB), Prime

Consultant’s staff who will provide any services related to the Project and Prime Consultant’s Consultants (including each Consultant’s directors, officers, owners, partners, shareholders and employees who will provide any services related to the Project) (collectively referred to in this section as “Affected Parties” and individually as an “Affected Party”). Accordingly, Prime

Consultant shall require each Affected Party to undergo a Security

Clearance Check.


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2.7 Prime Consultant further acknowledges that unless otherwise advised by the client in writing, Security Clearance Checks must be completed for each Affected Party and each Affected Party must receive clearance in accordance with the timelines set out in 2.7(i) and 2.7(ii) in order for Prime Consultant its staff and Consultants to provide any services related to the Project. Accordingly:

(i) Prime Consultant, its directors, officers, owners, partners, if applicable, shareholders (if a privately held corporation and as requested by SSCPB), and Prime Consultant’s staff then assigned to provide any services related to the Project must receive clearance prior to award of the contract; and

(ii) Prime Consultant’s Consultants (including each of the Consultant’s directors, officers, owners, partners, shareholders and employees who will be required to provide any services related to the Project), must receive clearance prior to providing any services related to the Project.

2.8 The client will provide CSO with all forms and information necessary to coordinate and facilitate the required Security

Clearance Checks.

2.9 Prime Consultant’s CSO shall obtain:

(i) written consent to perform a Security Clearance Check, in the form provided by the client, from each Affected Party; and

(ii) any other information that the client in its sole and absolute discretion acting on the direction of SSCPB, may deem necessary in order to conduct a Security Clearance Check on the Affected Parties;

and shall submit this information to the client in the prescribed form and in a sealed envelope. The client will provide the sealed envelopes to SSCPB so as to permit SSCPB to perform the necessary Security Clearance Checks.

2.10 As a consequence of any Security Clearance Check, the client acting promptly on the determination by SSCPB, may notify Prime

Consultant’s CSO that an Affected Party did not receive clearance. Upon request by the client, Prime Consultant will remove and replace any such Affected Party in accordance with GC 2.13 and GC 2.14 so that such Affected Party is no longer providing any services related to the Project. Prime Consultant further acknowledges and agrees that the client shall be acting reasonably


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and consistent with applicable laws if the client requests the replacement of an Affected Party who did not receive clearance following a Security Clearance Check.

2.11 During the term or any extension term of this Agreement, Prime

Consultant shall ensure that, within five (5) calendar days of becoming aware of any change, Prime Consultant shall inform the client in writing of any:

(i) change to any information related to Security Clearance

Checks for any existing Affected Party to enable SSCPB to update the individual’s Security Clearance Check; and

(ii) addition to the Affected Parties for the purpose of enabling SSCPB to perform Security Clearance Checks on any such new Affected Party. Prime Consultant shall provide any such information in accordance with GC 2.6, GC2.7, and GC 2.9.

2.12 All administrative costs incurred by Prime Consultant in complying with the requirements of this GC 2.3 to GC 2.14 shall be borne solely by Prime Consultant.

2.13 If any Affected Party refuses to consent to a security check

performed in accordance with this GC 2.3 to GC 2.14 or if any security check performed in accordance with this GC 2.3 to GC 2.14 relating to any Affected Party assigned to fulfil Prime

Consultant’s obligations under this contract discloses any security issue relating to the Affected Party, the client may determine that any such Affected Party is a security threat and provide written notice to Prime Consultant of the client’s determination. Upon receipt of such written notice, Prime Consultant shall promptly replace any such Affected Party.

2.14 Unless otherwise agreed to by the client in writing, any individual proposed by Prime Consultant to replace an Affected Party further to GC2.13 must possess the equivalent or greater qualifications and experience than that of the Affected Party being replaced and such individual must be provided at no incremental cost to the client.

GC 3 CONSTRUCTION BUDGET AND CONSTRUCTION COSTS

.1 Delete the word “three” in the first line of GC 3.2 and replace it with the word “six”.

GC 4.2 CERTIFICATE FOR PAYMENT


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.1 Add the following to the end of GC 4.2:

“However, the Prime Consultant shall not issue a certificate of payment unless and until the contractor has submitted a fully completed application for payment as set out in the construction contract.”

GC 5.4 COPYRIGHT AND USE OF DOCUMENTS

.1 Delete the words “including all fees and expenses of suspension or termination”, and add to the end of the sentence “, except any amounts in dispute between the parties.”

.2 Add a new GC 5.6 to GC 5.9 as follows:

5.6 The Prime Consultant consents to the right of the client to enlarge, alter or demolish the building, or in any other way alter the design without such work violating the moral rights of the Prime

Consultant. Acting in good faith, the client may, but shall not be obliged to, in cases of significant restoration, alteration or addition, consult with the Prime Consultant as to how best retain the integrity of the Prime Consultant's work while providing for the new work.

5.7 The Prime Consultant and its Consultants shall make all best efforts to avoid inclusion of designs, processes and equipment infringing applicable patents in the Project. In the event designs or equipment employed or provided are later claimed or found to be infringing, the Prime Consultant and its Consultants shall resolve any such situations at no cost to the client, except where there has not been an infringement of a patent.

5.8 Unless otherwise agreed to in writing, in advance, any process or design developed by the Prime Consultant and its Consultants specifically for inclusion in the Project shall be the property of the client and any patents sought for same shall be applied for and taken out in the client's name, responsibility, and expense. The Prime Consultant shall co-operate with the client in obtaining these patents.

5.9 The Prime Consultant consents to the right of the client to reuse the editable CAD files prepared to current OILC standards developed by the Prime Consultant and its Consultants, for future renovations. Any such reuse by the client will be at the client’s sole risk, without liability to the Prime Consultant.


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GC 6.1 PROJECT IDENTIFICATION


For large building Projects only, the Prime Consultant may request the client’s permission, which permission may be granted or denied in the client’s sole discretion, to sign the building that is erected by inscription, or otherwise, on a permanent, suitable and reasonably visible part of the building.

GC 7 LIABILITY OF THE PRIME CONSULTANT


7.1 The Prime Consultant hereby agrees to put in effect and maintain for the duration of this contract, at its own cost and expense, with insurance companies licensed to do business in the Province of Ontario, all the necessary and appropriate insurance that a prudent person in the business of the Prime Consultant would maintain, including, but not limited to, the following:

.1 Commercial General Liability insurance on an

occurrence basis for third party bodily injury, personal injury and property damage, to an inclusive limit of not less than five million ($5,000,000) dollars per occurrence, which policy is to include:

.1 contractual liability coverage; .2 cross-liability clause; and .3 employer’s liability coverage.

Such coverage shall continue and remain in full force and effect throughout the warranty period of the Project.

.2 Professional Liability Insurance for errors and

omissions in the performance or failure to perform the professional services, in the amount of:

.1 not less than two hundred and fifty thousand ($250,000) dollars per occurrence and not less than one million ($1,000,000) in the aggregate, if the Prime Consultant’s fee is less than twenty-five thousand ($25,000) dollars; .2 not less than five hundred thousand ($500,000) dollars per occurrence and not less than two million ($2,000,000) in the aggregate, if


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the Prime Consultant’s fee is between twenty-five thousand ($25,000) dollars and one hundred thousand ($100,000) dollars; .3 not less than one million ($1,000,000) dollars per occurrence and not less than two million ($2,000,000) in the aggregate, if the Prime

Consultant’s fee is greater than one hundred thousand ($100,000) dollars and up to one million ($1,000,000) dollars; .4 not less than two million ($2,000,000) dollars per occurrence and in the aggregate, if the Prime Consultant’s fee is greater than one million ($1,000,000) dollars; or as otherwise set out in the tender call documents.

.3 With the exception of Professional Liability

insurance coverage, all applicable coverage required under this contract shall include the client, which for greater certainty includes OILC and Her Majesty the Queen in Right of Ontario, as an additional insured with respect to liability arising in the course of performance of the Prime

Consultant’s obligations under, or otherwise in connection with, this contract and shall provide for thirty (30) day written notice of cancellation, termination, or material change to the client. The Prime Consultant shall provide the client with proof of the insurance required by this contract in the form of valid certificates of insurance that reference this contract and confirm the required coverage, on or before the commencement of this contract, and renewal replacements upon renewal of such insurance. Upon the request of the client, a copy of each insurance policy shall be made available to it. The Prime Consultant shall strictly require that each of its Consultants complies with the insurance requirements set out in this contract by obtaining similar types of insurance as the Prime Consultant and providing the Prime Consultant with proof of the acquisition and maintenance of such insurance.

.2 Delete the first sentence of GC 7.2.

.3 Delete GC 7.4.2 entirely and replace with:


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“be responsible for acts or omissions of the contractor, subcontractors, suppliers or any other persons performing any of the Work, but however, will notify the client in a timely manner, in writing, of any such acts or omissions the Prime Consultant observes during any site or General reviews and/or site meetings.”

.4 Add the following at the end of GC 7.4.4:

“except to the extent that the Prime Consultant has specified a procedure for removal of toxic or hazardous substances or materials in the Construction Documents, or a hazardous procedure.”

.5 Delete GC 7.5 entirely and replace with:

7.5 The client and the Prime Consultant agree that both parties may engage Consultants under other contracts. Where either party engages a Consultant, that party shall be responsible for the contract with its Consultant. Nothing in this clause shall derogate from the Prime Consultant’s duty to coordinate all Consultants.

.6 Delete GC 7.6 entirely

.7 Add new GC 7.8, GC 7.9 and 7.10 as follows:

7.8 The Prime Consultant agrees that the client and its directors, officers, employees, and appointees shall not be liable for any injury (including death) or damage suffered by a director, officer, employee, agent, independent contractor or Consultant of the Prime Consultant, or for the loss of or damage to the property of the Prime Consultant or of its Consultant, or their respective directors, officers, agents, employees, or independent contractors in any manner based upon, occasioned by or in any way attributable to the professional services, unless the injury, loss or damage is caused by the negligence of a director, officer employee or appointee of the client while acting within the scope of his or her employment.

7.9 The Prime Consultant shall indemnify and hold harmless the client, OILC, Her Majesty the Queen in right of Ontario, and their respective agents, appointees, directors, officers and employees from and against claims, demands, losses, expenses, costs, damages, actions, suits or proceedings that arise out of or are attributable to the Prime Consultant's performance of the Contract. Nothing in this paragraph 7.9 shall limit any claim that OILC, Her Majesty the Queen in right of Ontario, or the client may have under the insurance coverage to be provided under General Condition 7.1 - INSURANCE.


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7.10 The Prime Consultant shall not be liable for any damages arising out of the client’s reuse of editable CAD files developed by the Prime Consultant as contemplated under GC 5.9.

GC 8 SUSPENSION AND TERMINATION

.1 Delete GC 8.1, and replace with:

8.1 The client may suspend the provision of services by the Prime

Consultant under this contract at any time for any reason and without cause upon giving the Prime Consultant written notice to that effect.

In such event, the Prime Consultant shall be entitled to be paid for all services performed to the date of suspension and be compensated for all actual costs incurred arising from the suspension, and such other damages as the Prime Consultant may have sustained as a result of the suspension, but in no event shall the Prime Consultant’s actual costs continue to accrue during suspension, and in no event shall the Prime Consultant be entitled to be compensated for any indirect, special, or consequential damages incurred.

In the event that the suspension continues for more than 180 calendar days, the contract shall be deemed to be terminated and the provisions of GC 8.10 shall apply.

.2 Delete the word “forty-five” in GC 8.2 and substitute with the word “ninety”.

.3 Add the word “permitted” following the fifth word of the first sentence of GC 8.6. In the third sentence of GC 8.6, delete the words “thirty days of the date that the invoice for suspension of services is submitted” and substitute with the words “forty-five calendar days following the approval of invoices.”

.4 Delete GC 8.7 entirely

.5 Add the following at the end of GC 8.8.3:

“provided the Prime Consultant has completed all professional services called for under this contract, except where prevented by reasons beyond the Prime Consultant’s control; or”

.6 Delete GC 8.8.4 entirely.

.7 Delete GC 8.9 entirely.


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.8 Delete GC 8.10 and replace with the following:

8.10 The client may terminate the provision of services by the Prime

Consultant under this contract at any time for any reason and without cause upon giving the Prime Consultant written notice to that effect. In such event, the Prime Consultant shall be entitled to be paid for all services performed to the date of termination and be compensated for all actual costs incurred arising from the termination, but in no event shall the Prime Consultant be entitled to be compensated for any loss of profit on unperformed portions of the Work, or indirect, special, or consequential damages.

.9 Delete GC 8.11, GC 8.12, and GC 8.13 entirely, and replace with the following:

8.11 Upon termination, the Prime Consultant shall, in addition to its other obligations under this contract and at law:

.1 at the client’s request, provide the client with a report

detailing (i) the current state of the provision of services by the Prime Consultant at the date of termination; and (ii) any other information requested by the client pertaining to the provision of the services and performance of this contract;

.2 execute such documentation as may be required by the

client to give effect to the termination; and .3 comply with any other instructions provided by the client,

including but not limited to instructions for facilitating the transfer of its obligations to another person or entity.

8.12 If the client terminates the Contract pursuant to GC 8.10 the Prime

Consultant shall be entitled to be paid the actual costs incurred by the Prime Consultant for the services requested and performed pursuant to GC 8.11, as part of the Prime Consultant’s termination costs.

8.13 Termination shall not relieve the Prime Consultant of its obligations arising under this contract relating to the services performed or money paid. In addition to its other rights of holdback or set-off, the client may hold back payment or set-off against any payments owed if the Prime Consultant fails to comply with its obligations on termination.

1.0 Add new GC 8.14 and GC 8.15 as follows:


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8.14 If any security check performed in accordance with GC 2.3 to 2.14 discloses a security problem that is not resolved by the Prime Consultant to the satisfaction of the client within ten (10) business days following receipt of written notice of such problem from the client, the client may terminate this contract by giving Prime

Consultant notice in writing to that effect. 8.15 Without limiting the foregoing in this section, a finding on a

security check that is incompatible with ensuring any of the achievement of the following objectives is a security problem:

(i) Prime Consultant’s ability to provide the services in

accordance with the Agreement; (ii) the safety of the client’s directors, officers, appointees,

employees, agents, consultants or subcontractors, as well as the subcontractor’s directors, officers, employees, agents, consultants or subcontractors, government ministry clients and their directors, officers, appointees, employees, agents, consultants or subcontractors, as well as the subcontractor’s directors, officers, employees, agents, consultants or subcontractors and the public;

(iii) the reputation of or public confidence in the client; (iv) the security of the client’s financial assets and revenue; (v) the security of any real property owned, controlled or

managed by the client; (vi) the security of any other property owned, controlled,

managed or licensed by the client; (vii) the security, confidentiality or integrity of the client’s

confidential information and the integrity of any other materials held by the client.

GC 10 SUCCESSORS AND ASSIGNS

.1 In GC 10.2, change the words “contract documents” to “Prime

Consultant’s Instruments of Service” and add to end of GC 10.2 “, save and except for the client’s standard specifications and details that are found in substantially all of the client’s projects.”

GC 12 PAYMENTS TO THE PRIME CONSULTANT

.1 Delete the first sentence of GC 12.1 and replace with the following three sentences:

“The client will have 10 calendar days after the receipt of an invoice to review and approve or reject that invoice. If an invoice or part thereof is rejected, the client will notify the Prime Consultant of the disputed amount


Term OAA – SC 2011 07 15

of that invoice and the nature of the dispute within the 10 calendar day period referred to above. Payments for all amounts that are not disputed shall be made in accordance with Article A-14 of this contract.”



.4 Delete GC 12.5 and replace with the following:

12.5 If the scope of the Project or of the Prime Consultant’s services is changed, the fees shall be adjusted accordingly, subject to the provisions of this paragraph GC 12.5.

For Additional Services, or when revisions or additions are made by the client to the program of requirements or previously approved documents prepared by the Prime Consultant, and such revisions or additions require services beyond those already provided, the fee for such Additional Services shall be mutually agreed with the client, in writing, and the Prime Consultant shall only provide these Additional Services if authorized in writing by the client.

Where the client has not requested a change in services in the manner outlined above but the Prime Consultant believes that instructions or directions given by the client constitute Additional Services, the Prime Consultant shall promptly notify the client of the required Additional Services in writing. The fee for, and authorization to provide the Additional Services, will be determined in the manner outlined above.

Whenever any fee adjustment is contemplated, the Prime

Consultant shall provide to the client, within 5 business days, a written quotation for the Additional Services setting out a detailed description of the Additional Services, the methodology utilized for calculating the additional fee requested, an amount of adjustment for the Prime Consultant’s fees if any and the adjustment in the contract time if any for the proposed change in the services. The quotation shall also state on its face that the Additional Services are beyond the scope of the original scope of work under this contract and have not been caused by any error or omission by the Prime Consultant or anyone for whom the Prime

Consultant is responsible and do not pertain to changes that:

.1 are required by authorities having jurisdiction at the place of the Project, and that the Prime Consultant ought to have reasonably foreseen; or


Term OAA – SC 2011 07 15

.2 relate to coordination issues with or between Consultants;

for which no fee adjustment shall be made. The quotation shall also state whether, in the opinion of the Prime Consultant, the fees for the Additional Services were caused by an act or omission of the contractor. The Prime Consultant’s fees shall be based on the rates set out in the Schedules to this contract.

The client shall approve or reject the Prime Consultant’s written quotation within 5 business days of receipt of same. If the client rejects the written quotation, the parties will proceed to negotiate the cost of the Additional Services. Once the client has approved the quoted or negotiated amount, it shall provide the Prime

Consultant with a written amendment to confirm the Additional Services and the cost thereof.

If the client directs the Prime Consultant to proceed with the Additional Services prior to the parties agreeing to the corresponding adjustment in the Prime Consultant’s fee and contract time, the client shall issue a change directive. Upon receipt of the change directive, the Prime Consultant shall proceed promptly with the Additional Services requested.

The adjustment in the Prime Consultant’s fees for a change carried out by way of change directive shall be determined on the basis of the cost of the Prime Consultant’s actual expenditures and or any savings attributable to the change directive valued in accordance with the rates set out in the Schedules to this contract.

.5 In GC 12.6, delete the words “as set forth in article A10 of the agreement or” and add the words “in writing” to the end of the sentence.

.6 In GC 12.9, delete the words "plus an administrative charge as identified in Article A11 of the agreement.”

GC 14 VENDOR PERFORMANCE

Add the new GC 14 as follows:

GC14 VENDOR PERFORMANCE PROGRAM

In accordance with the client’s Vendor Performance Program, the client will evaluate the Prime Consultant’s performance of the services called for under this contract, using the criteria outlined in the Vendor Performance Scorecard and the Vendor Performance Guidelines, samples of which are affixed at Schedule “E” to this contract.


Term OAA – SC 2011 07 15

GC 15 RECORD DRAWINGS

Add the new GC 15 as follows:

GC15 RECORD DRAWINGS

The Prime Consultant shall prepare Record drawings and provide a writable copy of the digital files in addition to a PDF copy of the digital files to the client within 20 calendar days of the date it receives the completed as-built drawings prepared by the contractor.

Unless otherwise agreed in writing, until the completed Record drawings are submitted to it, the client will retain an amount from payments to the Prime

Consultant as follows:

• for Projects where the professional fees are less than $25,000 the amount retained will be $2,500;

• for Projects where the professional fees are greater than $25,000 but less than $100,000 the amount retained will be $2,500, or 5% of the fee, whichever is greater; and

• for projects where the professional fees are greater than $100,000, the amount retained will be $5,000 or 4% of the fee, whichever is greater.

Unless otherwise agreed in writing, should the Prime Consultant fail to produce completed Record drawings within 45 calendar days of the date it receives the completed as-built drawings prepared by the contractor, the amount retained will be forfeited to the client for the damages deemed to have been incurred by the client, and not as a penalty.

END OF DOCUMENT

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