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HomeMy WebLinkAboutBy-law No. 2022-020THE CORPORATION OF THE MUNICIPALITY OF BAYHAM BY-LAW NO. 2022-020 A BY-LAW TO AUTHORIZE THE EXECUTION OF AN AGREEMENT BETWEEN THE CORPORATION OF THE MUNICIPALITY OF BAYHAM AND HILLENAAR CONSULTING INC. (PAUL HILLENAAR) WHEREAS section 8(1) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, grants a broad scope of powers to municipalities to govern their affairs as they consider appropriate; AND WHEREAS the Council of the Municipality of Bayham is desirable to enter into an agreement with Paul Hillenaar for Chief Building Official duties; NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF BAYHAM ENACTS AS FOLLOWS: 1. THAT the Mayor and Clerk be and are hereby authorized to execute the Agreement attached hereto as Schedule "A" and forming part of this by-law between the Municipality of Bayham and Hillenaar Consulting Inc. (Paul Hillenaar); 2. AND THAT this by-law and agreement shall come into effect on April 1, 2022. READ A FIRST, SECOND AND THIRD TIME AND FINALLY PASSED THIS 17th DAY OF MARCH 2O22. MAYOR SCHEDULE "A" TO BY-LAW 2022-020 This Agreement has been duly signed this day of 2022 CONSULTING SERVICES AGREEMENT This consulting services agreement is between: The Corporation of the Municipality of Bayham ("Municipality") - and - Paul Hillenaar ("Consultant") The parties agree as follows: Retainer r I The Municipality hereby retains the Consultant to provide the consulting services set out herein (the "Services"), and the Consultant shall provide those Services to the Municipality under the general direction and control of the Municipality and subject to the provisions of this agreement. Services (1) The Services include the following: (a) Provide Building Official duties which includes dealing with staff and public, Complete plans examination and inspection services by reviewing plans and corresponding with the public and staff; --j Building inspections and issuance of building and septic permits, where applicable. ic;) With the consent of the Consultant, the Municipality may, inwriting, delete, add to, vary or otherwise alterthe Services. :I The Consultant shall, provide services in accordance with the work plan commencing April 1, 2022 for a period of four (4) months, until August 1, 2022 unless an extension is mutually agreed -to in writing by both parties. The Consultant shall provide the Services skillfully, competently, efficiently, effectively and economically, complete in every particular, in a good and worker like manner, consistent with industry standards and current state of the art principles, law and practice, to the satisfaction of the Municipality, and, unless approved by the Municipality otherwise, in accordance with the staffing schedule and within the estimated time lines and estimated budgets. { Personnel The Consultant shall provide the Services through Personnel approved in writing by the Municipality. The Personnel approved forthis project areas follows: (a) Paul Hillenaar SCHEDULE "A" TO BY-LAW 2022-020 () The Consultant shall ensure that its Personnel have the requisite competence, knowledge, skill, ability, experience, expertise and Ministry of Housing Qualifications and certifications required to provide the Services. Upon request, the Consultant shall deliver to the Municipality confirmation that the Province of Ontario has certified that the Consultant is authorized to provide the Services in a form satisfactory to the Municipality, acting reasonably. 4. Work Product (1) All information in any form, prepared by orfor the Consultant as part of the Services (the "Work Product") shall be, unless approved by the Municipality in writing to the contrary, the sole property of the Municipality and the Municipality shall own the copyright to all such information. If the Consultant owns any Work Product, or the copyright or any intellectual property in any Work Product during the term of this Agreement, the Consultant hereby transfers and assigns such ownership, copyright and intellectual property rights to the Municipality. (2} The Consultant shall promptly sign all documents and take all actions that may be necessary to ensure that the Municipality owns the Work Product, the copyright and the intellectual property rights in the Work Product. The Consultant further covenants that it shall cause its representatives to duly transfer and assign any of their ownership, copyrights and intellectual property rights to the Municipality. (3) The Consultant waives any and all moral rights arising under the Copyright Act, R.S.O. 1985, c. C-42 (the "Moral Rights") in the Work Product as against the Municipality. The Consultant shall ensure that anyone other than the Consultant, who has any Moral Rights in the Work Product, shall waive all such Moral Rights as against the Consultant and the Municipality. 5. Use of Confidential Information (1) In this agreement the following terms have the corresponding meanings: (a) "Confidential Information" means any information, whether oral, written, visual, electronic, or in any other form, which is identified as confidential or that would reasonably be considered as being confidential; (b} "Disclosing Party" meansthe party disclosing Confidential Information; (c) "Insider" means, in respect of a party, every director, officer, partner, associate, employee, sub -consultant, contractor or agent of the party; and (d) "Receiving Party" means the party receiving Confidential Information, and includes all Insiders. (e) The Receiving Party shall use Confidential Information relating to the SCHEDULE "A" TO BY-LAW 2022-020 Services only for the purposes of this agreement. (2) Except as provided in this agreement, the Receiving Party shall keep confidential all Confidential Information disclosed to it by the Disclosing Party. (3) The Receiving Party shall not copy or transcribe into another form, any Confidential Information received from the Disclosing Party except as reasonably necessary. (4) The Receiving Party shall protect the Confidential Information disclosed to it by the Disclosing Party, in the same manner and to the same extent that it protects its own Confidential Information. (5) Upon the termination of this agreement, or earlier upon the request of the Disclosing Party, the Receiving Party shall promptly return (as directed by the Disclosing Party) all copies of the Confidential Information disclosed to the Receiving Party. (6) The Receiving Party may disclose Confidential Information if: (a) The Disclosing Party consents; (b) The Receiving Party is required by law to disclose it; or (c) The Confidential Information is generally and publicly available. (7) If the Receiving Party is required by lawto disclose Confidential Information, it shall promptly notify the Disclosing Party so that the Disclosing Party may intervene to prevent the disclosure. (a) The Receiving Party shall ensure that all Insiders of the Receiving Party comply with all the foregoing provisions regarding the use of Confidential Information and the Receiving Party shall be responsible for any failure by any Insider to do so. (9) All the foregoing provisions regarding the use of Confidential Information shall remain in effect for five years after the termination of this agreement. (10) The harm that would be suffered by a party in the event of a breach of any of the foregoing provisions regarding the use of Confidential Information by the other party would not be compensable by monetary damages alone. Therefore, a party shall be entitled, in addition to any other remedies, to seek an injunction against a breach or threatened breach of any such provision. 6. Contacts and Communication (1) The Consultant shall treat Paul Hillenaarasthe Municipality's principal contact and source of instructions in respect of all aspects of this agreement, unless otherwise directed or permitted in writing by the Municipality. (2) The Municipality shall treat Paul Hillenaar as the Consultant's principal contact and source of reporting in respect of all aspects of this agreement, unless SCHEDULE "A" TO BY-LAW 2022-020 otherwise directed or permitted in writing by the Municipality. (3) The Consultant shall not communicate with the media about the Services except with the prior written approval of the Municipality. 7. Chargeable Amounts (1) The Consultant shall, at its own sole cost, and at no cost to the Municipality, except as specifically provided in this agreement or agreed to by the Municipality in writing, obtain and supply all work, labour, Personnel, sub -consultants, travel, plant, accommodations, equipment, materials, supplies and administrative, technical or other support necessary to provide the Services, including insurance, local orlong distance telephone, facsimile, postage, courier or other transportation or communication costs, and photocopying, printing or other reproduction costs. For greater certainty, the Consultant shall not, unless specifically agreed to by the Municipality in writing, charge any of such costs to the Municipality as disbursements. (2) The Municipality reserves the right to provide any of the above at no cost to the Consultant (3) The Consultant will be compensated at a rate per kilometre as per current year's posted CRA rates for travel within the Municipality when on Municipality -related business when a Municipal vehicle is not available. (4) The Consultant may charge the Municipality fortheprovision ofthe Services amounts based on the following fee rates: $75.00 per hour or such other amounts, which are agreed to in writing by the parties for specific portions of the Services. The Consultant shall not increase any fee rate unless the Municipality has provided its prior written consent. (5) The Consultant may charge the Municipality for any Harmonized Sales Tax payableonthe fees and disbursements charged to the Municipality bythe Consultant. (6) The Consultant shall not charge the Municipalityforvalue-addedorpremium billing. (7) Notwithstanding anything to the contrary contained in this agreement, ifthe Municipality decides at any time, for any reason, to discontinue a particular portion of the Services, the Consultant shall not charge the Municipality for any amount over and above payment, including payment on a pro -rated basis if applicable, for the chargeable fees and disbursements incurred in respect of such discontinued portion of the Services up to the date that the Municipality gives to the Consultant written notice of such decision to discontinue that portion of the Services, or a later date if work, already commenced by the Consultant, cannot reasonably be discontinued until such later date. (8) Notwithstanding anythingtothe contrary contained in this agreement, ifthis agreement is terminated prior to completion of the provision of the Services, the Consultant shall not charge the Municipality for any amount over and above payment, including payment on a pro -rated basis if applicable, forthe chargeable fees and disbursements incurred up to the effective date of such termination, or a later date if work, already commenced by the Consultant, cannot reasonably be discontinued until such laterdate_ SCHEDULE "A" TO BY-LAW 2022-020 a_ Accounts (1) The Consultant shall provide detailed monthly accounts of amounts charged for its provision of the Services, including the following particulars: (a) the number of hours worked and hourly rate, for each of its Personnel; (b) the amount of approved disbursements forwhich the Consultant is requesting reimbursement; and (c) The amount of Harmonized Sales Tax payable on its fees and disbursements. (2) If requested by the Municipality, the Consultant shall make available to the Municipality full accounts, records, receipts, vouchers and documents for the purpose of substantiating its charges. 9. Payment (1) The Municipality shall pay the Consultant the properly charged amounts incurred by the Consultant in providing the Services. (2) Despite any other provision in this agreement, the Municipality may obtain a review of any account rendered by the Consultant, and is not required to pay such account until the review has been completed. The Municipality is not required to pay any interest on any account in respect of any time during which such account is under review. Indemnification and Insurance (,I) The Consultant shall indemnify the Municipality and the Municipality's members of council, officers, employees, contractors and agents, against all losses and liabilities related to acts or omissions, in connection with this agreement, of the Consultant or any person for whom the Consultant is in law responsible. The Consultant shall, at the Municipality's election, either assume the Municipality's defence of any proceeding brought in respect of such loss or liability, or cooperate with the Municipality in the defence, including providing the Municipality with prompt notice of any possible loss or liability and providing the Municipality with all information and material relevant to the possible loss or liability. This section will survive the termination of this Agreement. (2) The Consultant shall not be liable for costs or damages arising from errors or omissions in any of the information which is supplied to the Consultant by the Municipality. (3) Without restricting the generality of the provisions in this agreement related to indemnification, the Consultant shall obtain, and for as long as this agreement is in effect, maintain, pay for and, upon request by the Municipality from time to time, provide evidence, satisfactory to the Municipality, of the SCHEDULE "A" TO BY-LAW 2022-020 following insurance coverages, all taken outwith insurers licensed to transact insurance business in Ontario and satisfactory to the Municipality: (a) Professional Liability Insurance i_ To a limit of not less than two million dollars ($2,000,000) inclusive per occurrence; and, ii. Subject to an annual aggregate of two million dollars ($2,000,000). 11. Employment Insurance and Workplace Safety and Insurance Act The Consultant shall, at all times, pay or cause to be paid any assessment or compensation required to be paid pursuant to the Workplace Safety and Insurance Act. The Municipality will accept responsibility for obtaining from oron behalf of a Proponent a current Certificate of Clearance. The cost of this certificate will be deducted from any amounts owing to the Consultant. 12. Compliance with Law and Policies (1) The Consultant shall comply with all applicable federal, provincial and local laws, regulations and rules. (2) If the Services include testimony by any Personnel, as an expert witness, before any court or tribunal, the Consultant shall ensure that such Personnel sign such forms and follow such procedures as may be required of expert witnesses before such court or tribunal. (3) The Consultant shall comply with the Municipality's Occupational Health and Safety policies, Workplace Safety and Insurance requirements and Human Rights policies. (4) The Consultant shall comply with the provisions, to the extent that they are applicable, of the Accessibility for Ontarians with Disabilities Act, 2005 and regulations thereunder, in respect of all goods or services provided by the Consultant on behalf of the Municipality. Without limiting the generality of the foregoing, the Consultant shall ensure that all of its Personnel, subcontractors and others for whom it is at law responsible, receive training about the provision of the goods and services contemplated herein to persons with disabilities, in accordance with section 6 of Ontario Regulation 429/07, Accessibility Standards for Customer Service, made under the Accessibility for Ontarians with Disabilities Act, 2005. This training includes, but is not limited to, training relating to, and ensuring compliance with, the policies, practices and procedures of the Municipality respecting the provision of goods and services to persons with disabilities. (5) Any reference in this agreement to legislation, policies or rules is to such legislation, policies or rules as amended, extended, re-enacted or replaced. 13. Relationship between Parties SCHEDULE "A" TO BY-LAW 2022-020 (1) The Consultant is an independent contractor of the Municipality. The Consultant shall not, except as the Municipality may specifically authorize in writing, enter into any contracts or commitments in the name of or on behalf of the Municipality, or bind the Municipality in any respect whatsoever. The Consultant is not a partner, joint venturer, agent or employee of the Municipality, (2) This agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior commitment, representation, warranty, arrangement, understanding or agreement, written or oral, collateral or other, with respect to the subject matter hereof, existing between the parties at the date of execution of this agreement. (3) Until five years after the termination of this agreement, the Consultant shall not, except with the prior written approval of the Municipality, enter into any relationship with any person, other than the Municipality, in respect of consulting services which touch on any of the matters or issues which form the subject matter of the Services. 14. Municipality Responsibilities 0 The Municipality shall provide instructions, guidance and assistance to the Consultant relating to the provision of the Services. (2) The Municipality shall use reasonable efforts to make available any relevant municipal reports, background information, data, drawings, plans, surveys and any other materials relevant to the Services, which are in its possession, for use by the Consultant, and shall make available, at reasonable times, Municipality employees for the purpose of any necessary consultation. () The Municipality shall provide the following equipment for use by the consultantwhen carrying out his duties within the Municipality of Bayham a a Municipality owned vehicle (including fuel). If a vehicle is not available the Consultant will be compensated for the use of their own vehicle in accordance with section 7.(3) of this agreement. Notices (1) A party required or permitted under this agreement to give any notification or communication ("Notice") shall give it in writing and shall deliver it by personal delivery, email, facsimile, courier or prepaid regular mail to an address of the other party provided for herein. {2) Either party may from time to time change any of its addresses by Notice given in accordance with this section. (3) The initial addresses for the Municipality are as follows: The Corporation of the Municipality of Bayham 56169 Heritage Line, PO Box 160 Straffordville, ON NOJ 1Y0 SCHEDULE "A" TO BY-LAW 2022-020 (4) The initial address for the Consultant is as follows: Paul Hillenaar, Hillenaar Consulting 12 Melissa Court Ayr, ON NOB 1 EO 16. Force Majeure r11 Whenever and to the extent a party is unable to fulfil, or is delayed or restricted in fulfilling, any of the obligations under this agreement by reason of any cause beyond the party's reasonable control, then the time for fulfilling such obligation is to be extended for such reasonable time as may be required by the party to fulfil such obligation, provided that any such inability, delay or restriction does not relate to any extent to any act or omission by such party or any of its employees, agents or others for whom it is at law responsible, and further provided that the party seeking such extension submits promptly to the other party a written Notice of extension of time and the specific reason and expected duration of such extension. Waiver ;'. A party may waive any of its rights, powers or remedies hereunder. No waiver is effective unless made inwriting. The failure of either party to exercise any of its rights, powers or remedies hereunder or its delay in doing so, does not constitute a waiver of any rights, powers or remedies. A single or partial exercise of a right, power or remedy does not prevent its subsequent exercise or the subsequent exercise of any other right, power or remedy. �. Termination The Municipality may, with or without cause, terminate this agreement upon at least thirty (30) days' written notice. i }: The Consultant may, with or without cause, terminate this agreement upon at least thirty (30) days' written notice SCHEDULE "A" TO BY-LAW 2022-020 19. Interpretation (1) This agreement is to be construed with all changes in number and gender as (2) may be required by the context. The division of this agreement into sections, subsections and clauses isfor (3) convenience of reference only and does not affect the interpretation. The obligations of the parties contained herein have, where applicable, the (4) status of representations, warranties and covenants bythe respective obligated party. {} This agreement is to be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. 20. Signing Time is to be of the essence of this agreement, including if any extension is permitted. The parties may sign this agreement in counterparts with the same effect as if the parties had executed the same document. Any counterparts are to be construed together and shall constitute one and the same original document. The parties shall deliver any executed counterparts of this agreement in accordance with the provisions set out in this agreement for delivery of Notices. This agreement will become effective when both parties have signed it. The date this agreement is signed by the last party to sign it (as indicated by the date associated with that party's signature) will be deemed the date of this agreement. SCHEDULE "A" TO BY-LAW 2022-020 21. Miscellaneous (1) All provisions of this agreement are severable, and if any provision is declared invalid, void or unenforceable by court of competentjurisdiction, the remaining provisions of this agreement remain in full force and effect. () This agreement is to enure to the benefit of and bind the parties and their respective heirs, executors, administrators, successors and permitted assigns. (3) No change or modification of this agreement is valid unless it is in writing and signed by each party. Each party is signing this agreement on the date stated opposite that party's signature. For the Municipality: Date f Date For the Consultant: Date Paul Hillenaar Consultant SCHEDULE "A" TO BY-LAW 2022-020 Miscellaneous (1) All provisions of this agreement are severable, and if any provision is declared invalid, void or unenforceable bya court of competent jurisdiction, the remaining provisions of this agreement remain in full force and effect. This agreement is to enure to the benefit of and bind the parties and their respective heirs, executors, administrators, successors and permitted assigns. (3) No change or modification of this agreement is valid unless it is in writing and signed by each party. Each party is signing this agreement on the date stated opposite that party's signature. For the Munidpality: r _ -Z rx Gate { `— Date For the Consultant: Date Paul Hillenaar Consultant