2013-04-15_Supplemental Agenda Packet--Dossier de l'ordre du jour supplémentaire � � �
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City of Saint John
Common Council Meeting
SUPPLEMENTAL AGENDA
Monday, April 15, 2013
6:00 pm
Council Chamber
Please use Chipman Hill entrance
S'il vous plai� utiliser I'entree Chipman Hill
Si vous avez besoin des services en francais pour une reunion de Conseil Communal, veuillez contacter le
bureau de la greffiere communale au 658-2862.
Pages
8. Delegations/ Presentations
8.2 Revised Presentation Re: The Procurement Process for Public Tender Calls 1 - 17
and Requests for Proposa/s
17. Committee of the Whole
17.1 Committee of the Who/e: Sett/ement Terms-Pomer/eau Inc. 18-25
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City of Saint John
Common Council Meeting
Monday Apri115,2013
Committee of the Whole
1. Call to Order
Si vous avez besoin des services en fran�ais pour une reunion de Conseil Communal, veuillez
contacter le bureau du greffier communal au 658-2862.
Each of the following items, either in whole or in part, is able to be discussed in private pursuant
to the provisions of section 10 of the Municipalities Act and Council/Committee will make a
decision(s) in that respect in Open Session:
4:30 p.m. 8th Floor Boardroom City Hall
1.1 Approval of Minutes 102(4)
1.2 Land Matter 10.2(4)(d)
1.3 Land Matter 10.2(4)(d)
1.4 Land Matter 10.2(4)(d)
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T e Procu rement Process or
Pu ic Ten er a s an
Re uest or Pro osa s
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IIV � R � � I IV
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PR�CIJ REM ENT LAV11� TRA� E
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A� REEM ENT� AN D P� LI � I ES
► Procurement in New Brunswick is subject to a hierarchy of:
➢ TRADE AGREEMENTS
➢ Agreement on Internal Trade (Goods &Services > $100K & Construction > $250K)
➢ Quebec-NB Trade Agreement (Goods, Services and Construction > $100K)
➢ Atlantic Procurement Agreement (Goods > $25K, Services>$50K, Construction > $100K)
➢ LEGISLATION
➢ Public Purchasing Act & Regulation 94-157 of the Province of New Brunswick
(Goods and Services)
➢ Crown Construction Contracts Act (Construction)
(Municipalities may choose to abide by this standard)
➢ POLICY
➢ City of Saint John's Policy for the Procurement of Goods, Services and Construction
The City of Saint John is subject to the above legal obligations.
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� row r� � o n � t r u �t i o n � o n t ra�t � A�t
► Crown Corporations of NB are governed by
this the Crown Construction Act for highway
and bu i Id i ng construction .
► Although this legislation does not apply to
municipalities , our Engineering Department
have chosen to abide by its standard as its
basic principles are consistent with the Trade
Agreements .
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PlJ � LI � PlJ RCHA� I N � A�T �
RE� U LATI � N � 4 - 1 � 7
This Act and Regulation covers the procurement of Goods and Services by
the Province and public funded bodies including Municipalities.
It defines:
➢ the tendering process;
➢ responsibilities of those responsible for procurement;
➢ defines circumstances and services which are exempted from the
application of the act and regulations. Exemptions include:
� Engineers
; Land Surveyors
� Medical Practitioners
�- Architects
���� Barristers and solicitors
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� ITY OF �AINT JOHN PROCIJRMENT P� LICY
► The City' s Procurement Policy expands on the
requirements of the Trade Agreements and the
Public Purchasing Act of the Province of NB by
detailing :
➢ Spending Authorities for Staff
➢ Bidding Processes
➢ Contract Administration
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er� i � a u ic � n er u � e .
► When the expenditure is in excess of:
• $ 25 , 000 for Goods
• $ 50 , 000 for Services
• $ 100 , 000 for Construction
► When requirements can be adequately defined to allow
fior evaluation against clearly stated specifications .
► When the award is made on the basis of lowest
compliant bid .
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u ic en er roce � �
► Tender documents are prepared and include detailed specifications, drawings
and contract terms.
► Tenders are publicly advertised on NBON.
► Tenders are opened publicly and reviewed by the "Tender Opening
Committee" for completeness and compliance with the tender requirements.
► Bid prices of compliant tenders are read aloud and then referred to staff for
additional review.
► Incomplete tenders are rejected and returned to the submitting bidders
immediately following the meeting.
► Recommendation for award is prepared.
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W ni nRFP .
e s a use
➢ When the City has defined an objective, need or problem and
requests respondents to propose the best method for
accomplishing it;
➢ When specifications of the project cannot be clearly defined .
➢ When the skills, expertise, or technical capability of the respondents
will be evaluated ;
➢ When price is not the primary consideration ; or
➢ When staff require the opportunity to ask respondents to clarify
their proposals by issuing questions or through an interview
process ;
If the project fits any of these situations, then an RFP is the
procurement tool to utilize.
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► RFP's are publicly advertised on NBON.
► After closing, copies of proposal submissions are distributed to an established
evaluation committee consisting of staff with procurement knowledge and staff
who understand the project.
► The proposal submissions are independently scored by each committee member
against established criteria.
► The committee meet, discuss each proposal and come to a consensus of total
scoring.
► Financial Proposals are opened and once a score is assigned, it is added to the
technical score to obtain an overall total score.
► If additional information is required to obtain a final consensus, the committee
may choose to:
� provide written questions to respondents for clarification of their proposals
� interview all respondents or a shortlist of respondents.
► Recommendation for award.
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R r Pr RFP
e ue � t � � o � � �
► Standard Criteria consists of:
� (i) Quality and Completeness
� (ii) Company Experience
� (iii) Experience of Employees / Sub-Contractors
� (iv) Methodology / Approach
� (v) Val ue Added
� (vi) Cost
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Wh it i � n �t � n ���� ted ra�ti �e
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to di � cl � � � � id ric� � �f ar� RFP?
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► Proposals received may vary greatly with respect to:
� levels of expertise or qualifications
� levels of effort (man hours)
� Approach to completing the work
► Standard practice in the procurement industry is to disclose
only the total price of the successful proponent.
► Unsuccessful proponents may request a proposal debriefing
where information is given in the form of general statements
as to their strengths and weaknesses for each criteria and in
relation to the successful proponent.
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�rofe � � ional �� rvi �e � / � ire�t En a er� ent
g g
Notwithstanding the noted exemptions in the New Brunswick
Pu,blic Purchasinq Act, the engagement of Professional Services ,
including but not limited to architects , engineers , surveyors , and
solicitors , will be undertaken in a fair, open , and equitable
fashion utilizing the method outlined in section 5 . 8
(Professional Services) of the City's Procurement Policy.
► Service providers are selected on the basis of their ability to
provide the specific professional service required .
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P r i r� r� i
o e � � o a e � e �
The following standard is in accordance with the estimated cost of Professional Services:
Estimated Cost Process Approval Level
Up to $15,000 Based on ability and experience Division Manager
$15,000-25,000 Based on ability and experience Department Head
Written Submissions by Invited Bids
$25,000-50,000 City Manager
(Minimum of 3 where possible)
$50,000-$75,000 Advertised Public Call for Proposals City Manager
$75,000 and up Advertised Public Call for Proposals Council
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on - � r� etitive u r� a� � �
► Section 5 . 1 1 of the City' s Procurement Policy states :
"The requirement for a competitive Bid Solicitation for Goods, Services and
Construction may ,be waived under the authority of the City Manaqer or Common
Council and replaced with neqotiations ,by the Division Manager and Materials
Manaqement under the fol%winq Circumstances:
(i) ...application of a piece of leqislation or existence of patent riqhts,
copyriqhts ...
(ii) ...Special Circumstance exists.
(iii) ...fol%w-on contract was identified in the oriqinal ,bid solicitation.
(iv) in any of the circumstances listed as exemptions to competitive pu,blic
purchasinq in Req. 94- 157 under the Pu,blic Purchasinq Act. "
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Follow- on Non -Cor� etitive �� ntr�cts
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► Section 5 . 1 3 of the City' s Procurement Policy deals
with Follow-on or Non -competitive contracts for
professional services .
► There are instances where a likelihood exists that it
will be necessary to award a non -competitive
contract for additional related professional
services .
► Where possible , this additional work should be
identified in the original award .
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April 9 5, 2013
Deputy Mayor Rinehart and Councillors,
Subject: Committee of the Whole —Settlement Terms — Pomerleau Inc.
The Committee of the Whole, having met on April 15, 2013, adopted the following resolution:
RESOL.VED that the Committee of the Whole recommends that Cammon Cauncil approve the
settlement agreement with Pomerleau Inc. regarding alf outstanding clairr�s for construction af
the Police Headquarters and that the Mayor and Common Clerk be authorizsd to execute the
agreement
Sincerely,
��i�' r
Mel Norton
Mayor
��- ---
SAINT IOHN P.O.8ax 19TI Sair�t Jahn,NB Canada E2�418� �vww.saintjohn.ca � C.P.1971 Saint johr�,N.-B�Canada E2L 41.7
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5ETTLEM�NT AGRE�MENT
This SETT�,EMENT AGREEMENT rnade in tripiicate this day of April, 2013 (the
"EffecCive Date").
BETWEEN:
The City oF Saint John(hereinafter the"City")
-and-
Pomerleau Cnc. (hereinafter"Pomerlea�")
WHEREAS the City and Pornerleau entered into a contract on the 15� day of July, 2�10,
Project No. 2010-081201T, for the construction of the Saint John Police Headquarters,
municipally known as Civic IVo.l Peel Plaza,Saint Johr�, New Bruns�uvick�the"Contract"];
AND WHEREAS Pomerleau advanced a claixn against the Gity for compensation for
outstanding accounts,approved change orders,holdbacks, delays in the performance of the
Work,extra costs,other expenses and interests;
AND WHEREAS the City and Pornerleau have agreed to arnicably and fully resolve the
dispute;
A1VD WHEREAS the words defined in the Definitions section of the Contract when used in
this Settlement Agreement shall have the same rneaning as the said C�nfiract;
AND WHEREAS the Common Councii on tlpril [�+],2013, resolved:
a] That[t��][Enter resQlution af Common Council before signing]
b) That the Mayor and Common Clerk be authorized to sign any required
documents.
NOW THEREFORE, in consideration of the promises and mutual covenants and
agreements hereafter contained and other good and valuable consideration,the receipt and
sufficiency of which are hereby acknowledged, and ip complete settiement of the dispute,
the Parties hereto covenant and agree as follows:
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1. Pomerleau shalI:
(a) Execute,file and deliver a Notice of Discontinuance barring further actions i❑
the format attached hereto as 5chedule "A"with the Court of Qtaeen's Bench
in the action filed by Pomerleau against the City associated with Cause No.
S/G/118/13;
[b) Remove the Certificate of Pending Litigatior� filed in the Saint John County
Registry Office as No. 32501257 and 32501Z32 on March 18, 2p13 as against
PID Idos.: OOQ37374, 55208318, 00037473, 00037382, O1�037465, 00037390�
and 00037408 (the"Property"),by obtaining and registering a Revocatian of
the Certificate af Pending Litigation in the form prescribed by the Rules of
Court;
[c} Remove the Claim for Lien filed in the Saint John Connty Registry Office as
No. 32294598 and 32417934 on December 21, 2012 as against the Property,
by obtaining and registering a Certificate of Discharge in the form prescribed
by the Mechanics'Lien Act, R.S.N,B. 1973, c. M-6, and amendments thereto
(the"Mechanirs'LienAct");
(d) Execufie and del�ver a Statutory Declaration as per the terms and conditions
of the Contract;and,
(e) RemovE any Claims For lien or Certificates of Pending Litigation arising ovt of
the Contract and registered against the Property.
Z. Subject to provisions herein,the City shall pay to Pomerleau,pursuant to Artic�e 4.1
of the Contract,the ba]ance af the Contract Price,as follows:
(a) All Work perf�rmed by Pomerleau from November 2p12#o �ebruary Z013 as
specified in the respective certificates for payment, ali amounts retained
pursuant ta section 15 of the Mechanics'Lren Act, and a!1 approved �hange
Ordecs, in the amount of Four Million Four Hundred Ninety-Six Thousar,d
Seven Hundred Ninety Dollars and Forty-One Cents ($4,496,790.41), HST
included;
(b) All claims for char►ge in the Contract Price for additional Work, in the annount
of Two Hundred Twenty-Sax Thousand pollars ($226,000.00), HST included;
and
(c) A delay claim anaount resulting frQm delays in the performatace of
Poznerleau's Work, in the amaunt of Five Hundred Sixty-Five Thousand
Dollars ($565,QQO.OQ),HS'1'included.
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3. The Contract Price identified at section 2 of this Settlement Agreement is detailed in
Schedule "B". The Contract 1'rice includes Change Order - additional Work and
Change Order-Delay Claim as listed in Schedule"B".
4. The City shall retain from the Contract Price pursuant to General Condition 5.�.0.3 of
the Contract,a holdback for the following liens:
(a) First Choice VentiIation Ltd. Lien No. 32404262 and 32404296, dated
February 6, 2013;
(b) Clayton Woodworking Ltd. Lien No. 3241793� and 32417991, dated
February 12, 2Q13;
(c) Royal Doors Ltd./Portes Rayaie Lt�e. Lien No. 324$7739, dated March 1Z,
2013;
For a totai of retained amount oF One Million pollars ($1,400,000.00) being the lien
haldback pursuant to Gener�l Condition 5.10,3 of the Contract [the "Lien
Holdback").
5. The City shall pay the Lien Holdback to Pomerleau upon removal of all liens and
Certificates of Pending Litigation from the Property. The Lien Holdback shall not be
reduced as the resUlt of the removaI of an individual lien.
6. The City shall retain Erom the Contract Price, pursuant to General Condition 5.7.5 of
the Contract, a holdback for defciencies in the amount of Two Hundred and Fifty
Thousand Dollars {$2SO,OOO.pO) (t�e "Deficiencies Holdback"].
7. The CiLy shall pay the Deficiencies Holdback to Pornerteau once the Work has been
completed to th�satisfaction of the Consultant and Cit_y.
8. Pornerleau requests that the City pay the balance af the Contract Price, as specified
in section 2 hereta,by cheque made payable to Pomerleau inc,
9. This Settlement Agreement does not, in any way, affect or extiriguish any existing
right or obligation of Pomerleau to the City contained in thc Contract, including the
obligations of Pamerleau pursuant to the Contract v►�ith respect to campletion or any
obligation with respect to indemnity, insurance, warrdnty or requirements to carry
out such carrection of defects and deficiencies as may be required pursuant to the
Contract.
1Q. Pomerleau hereby waives and releases the City Crom all claims, including any clairns
fnr an increase in the Contract Price, compensation, extras, deiay costs, breach of
contract or any similar claims, which Pomexleau has or reasonably ought to have
knowledge of that cauld be advanced by Pomerleau against the City arising from
Pomerleau's involvement 4n th� v,rork prior to or an the date of this Settlement
Agreement mcluding,without limitation,those arising from negligence or breach of
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Page � 4
contract in respett of which the cause of act�ion is based upon acts ar amission
which occurred prior to pr on the date of this Settlement Agreement.
11. This Settlement Agreement shall be governed by and construed by the laws of the
Province of New Brunswick. The Parties irrevocably attarn to the exclusive
jurisdiction of the Courts of the Province of New $runswick in relation to the
enforcement of this SettJement Agreement.
12. The Parties acknowledge that each of them has had a reasonable opportunity to
read and consider this Settlemeht Agreement and to obtain such legai or other
advice in regara to the Settlement Agreernent as they consider advisable. The
Farties hereby acknowledge that each of thern understand the meaning of the
provisions of this Settlement Agreement and the conseyuences of signing it. The
Parties hereby acknowledge that each of thern has signed this Se�tlement Agreement
voluntarily,without coercion and without reliance on any representation, express or
implied by the other.
13. This Settlement Agreement contains the entire agreement between the Parties v►rith
respect to the subject matter hereof and supersedes and cancels all prior
cornmunicatians, understandings and agreements between the Parties,whether oral
or written, express pr ir►�,plied with respect to the subject matter hereof. There are
no representations, warranties, collaterai agreements or conditions affecting this
Settlement Agreement other than expressed herein. The Parties further
acknowledge and agree that in entering into this Settlemcnt Agreement they have
not in any way relied upon any oral or written agreements, representatiuns,
warranties, statements,nr information,either express or iznplied,not speci�cally set
forth in this Settlement Agreernent.
14. The Parties hereby acknowledge and confirm that this Settlement Agreement may
be executed in counterparts and that a facsianile, eiectronic copy or a photacopy of
this Settlement Agreement is as binding as the original.
15. P�rnerleau acknowledges that the within Settlement Agreement including the
Schedules attached hereto, is not binding upon�he City untit such time as the within
SettIement Agreernent is sealed with the carporate seai of The City of Saint John and
signed by the Mayor and the Assistant Common Clerk of th�City.
�b. �omerleau further acknowledges and agrees that regardless of any representat�ons
ar warranties, the within Settlement Agreernent is not binding on any party until
such time as the City and Pomerleau have executed the Sett�ement Agreexnent as
required by the Municip�tlities Act,R.S.N.B., 1973 c.M-22,and amendments fihereto,
17. The Parties agree to do, execute, acknowIedge, and deliver or cause to be done,
executed, acknorivledged and delivered such further documents, assurances ar
things as may be reasonably required for the more cornplete and perfect observance
and performance by each of the parties�ereto of this SettlementAgreement.
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18. These minutes shall enure to the benefit of and be hinding on the Parties hereto and
their respective successors and permitted assigns.
DATED at Saint John, New Brunswick,this day of April,2013,
THE CITY OF SAINT JQHN
Me1 Norton,
Mayor
Jonathan A.Taylor,
Assistant Common Clerk
DATED at Dartznouth,Nova Scotia,this day oFApril, ZQ13.
POMERLF�IU INC.
Patrick Stiles, P.Eng.,LEED�AP, GSC
Regional Director-Atlantic
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SCHEDULE"A"
Cause No.;S/C/118J13
IN THE COURT OF(�UEEN'S BENCH OF NEW BRUNSW[CK
TRIAL DIVISIpN
JUDICIAL DISTRTCT OF SAINT JOIiN
BETWEEN:
PUMEMtLEAU INC.,
Plaintiff,
-and-
THE CITY OF SAINT JOHN,
Detendant
NOTICB OF DISCONTIIVUANCE
[Form 25A)
T�e PIaintiff, Pomerleau Inc., wholly discontinues this claim against the DeFendant, The City of Saint
John,without costs. Pursuant to Rule 25.06,this discancinuance shall be a defence to any subsequent action
by the Plaentiff.
DAT�D at Dartmouth,Nova Scotia,this day ofApril,A.D.2023.
POMERLEI#�J I]VC.
Patrick Stiles,P.Eng.,1,�ED�AP,GSC
Regional Director-Atlantic
Pursuant to Rule 25.01[c),1 HEREBY CONSENT ta the filing flf the within Notice af I?iscontinuance.
DATED at Saint John.New Srunswick,this_day of April,2013.
THE CITY OF 5AINT JUHN
Per:
Mel Norton,Mayor
Jonathan A.Taylnr,
Assistant Common Clerk
Council Resoiution:Apri)�2013
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SC�iEDULE°B"
HST
Origfnal Con.tract Price $2Q,675,000.00 $2,b87,750.00
Approved and paid changes $855,632.24 $111,232.19
CO-Addifiianai Work $200,OOD,OD $26,000.00
CO-Delay Claim $500,000.00 $65,000_DO
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