The Georgetown Mayor and City Council will have to reimburse Smart City Solutions for any loss the company may suffer as a result of third party action. Also, the company has the power to penalise emergency, government and diplomatic vehicles, and staff of the M&CC can be absorbed into the company’s operations to perform enforcement activities.
These are some of the alarming details noted by this newspaper, while perusing the original contract signed between the two entities for paid parking in the capital city.
The reimbursement for any loss suffered as a result of third party action is provided for in Article 17 of the contract titled “Indemnification.”
The section reads, “The city shall indemnify (reimburse) the concessionaire (SCS) against all liabilities, costs, expenses, damages and losses including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other professional costs and expenses suffered or incurred by the Concessionaire.”
This charge on the City will be effective when certain conditions exist e.g. “Any claim, action or other proceeding whatsoever made against the Concessionaire by any third party arising out of, or in connection with any public parking arrangements, concessions or agreements whatsoever between any third party and the Mayor and Councillors of the City of Georgetown.”
Another ground for reimbursement includes, “Any claim, action, motion, petition, summons, writ or other proceeding whatsoever made against the Town Clerk, the Mayor and Councillors of the City of Georgetown…which results in the delay in the performance or frustration of this agreement.”
Lastly, the City would be liable to repay the company such money if there is “Any delay by the Mayor and Councillors of the City of Georgetown in the performance of this agreement on account of any claim, action, motion, petition, summons, writ or other proceeding whatsoever by the City or any third party whomsoever against the City.”
As it relates to taxes being charged on this indemnity, the agreement states that if such payment due from the City is subject to tax (whether by way of direct assessment or withholding at its source), the company shall be entitled to receive from the City such amounts to ensure that the net amount received, after tax, is the same as it would have been were the payment not subject to tax.
Delving further into the contract, it was noted that SCS will be allowed to penalise emergency, government and diplomatic vehicles.
According to Section 4.8 of the agreement, these classes of vehicles are exempt from paying metered parking fees. However, it is not an absolute privilege despite their nature. The consideration can only be enjoyed if these vehicles are parked in Metered Parking Spaces in emergency performance of their police, fire, medical or ambulatory duties.
The contract states further that, “With respect to non-paid parking of exempt vehicles, the city will penalise any abuse of such unpaid parking privileges through fines and other appropriate measures and will take all reasonable measures to deter abuse of unpaid parking of exempt vehicles in Metered Parking Spaces.”
Originally, the contract did not provide for government vehicles, and vehicles belonging to the Diplomatic Corps, but after amendments by the Council, these two classes of vehicles were included.
Further, City staff can be used by the company to carry out its enforcement activities. City Hall has pledged the support of its staff to the extent that they can be integrated into the company’s operations centre.
According to the document, at any time during the term of the contract, whether at the beginning or at any point thereafter, the company at its own discretion may choose to conduct the enforcement activities using the police or other City staff.
To facilitate this, it was initially agreed that SCS would pay City Hall a month in advance $50,000 for every City Police or City staff employed to perform the enforcement activities. However, following amendments, this was supposedly increased to $78,000.
It is unclear whether City Hall would employ additional staff, since an uncertain number can be absorbed by SCS to perform specific enforcement activities.
The increase in payment for using City staff was made during a meeting with councillors to propose amendments to the contract. Among the changes made, was an adjustment to the lifetime of the contract. Based on reports, it was said that it was reduced from 49 years to 20 years. Additionally, the rate under the termination clause was said to have been reduced from 25 per cent to 15 per cent for every year remaining on the contract.
However, when some councillors were contacted by this newspaper, no one was able to say whether these amendments were indeed made to the original contract since the amended document has not been produced.
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