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HomeMy WebLinkAboutBy-law No. 2022-051THE CORPORATION OF THE MUNICIPALITY OF BAYHAM BY-LAW NO. 2022-051 BEING A BY-LAW TO AUTHORIZE THE MAYOR AND CLERK TO EXECUTE A CONSTRUCTION AGREEMENT BETWEEN THE MUNICIPALITY AND FROESE EXCAVATING LTD. FOR THE CONSTRUCTION OF A PORTION OF GREEN LINE (PART OF ROAD ALLOWANCE BETWEEN CONCESSIONS 10 AND 11 LOT 20) WHEREAS the Owners of lands, Andrew and Kim Heutinck, have applied to the Municipality for permission to reconstruct that part of the said Green Line road allowance shown as PART 1 on Plan 11 R-10796, described in Schedule `A' attached hereto and forming part of this By-law, and have contracted directly with Froese Excavating Ltd. to perform the works at the Owners' expense in order to provide frontage and access to the lands of the Owners, AND WHEREAS the Council of The Corporation of the Municipality of Bayham is in agreement with the project proceeding subject to the conditions as set out in the Development Agreement attached hereto as Schedule `A' and forming part of this By-law; AND WHEREAS the said Contractor, Froese Excavating Ltd., is in agreement with the terms and conditions as set out in the aforementioned Agreement and Council now deems it necessary to execute same. THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF BAYHAM ENACTS AS FOLLOWS: THAT the Agreement attached hereto as Schedule 'A' and forming part of this By-law between the Corporation of the Municipality of Bayham and Froese Excavating Ltd. setting out the terms and conditions for the construction of Green Line as described in the said Agreement is hereby approved. 2. THAT the Mayor and Clerk be hereby authorized to execute the said Agreement. THAT this Agreement shall come into full force and effect upon the date of its enactment. READ A FIRST, SECOND AND THIRD TIME AND FINALLY PASSED THIS 21st DAY OF J U LY 2022. MAYOR Schedule `A' By-law No. 2022-051 GREEN LINE CONSTRUCTION THIS AGREEMENT made in duplicate this 2111 day of July 2022. BETWEEN: FROESE EXCAVATING LTD. (hereinafter referred to as the "Contractor") of the First Part THE CORPORATION OF THE MUNICIPALITY OF BAYHAM (hereinafter referred to as the "Municipality") of the Second Part WHEREAS the development of certain lands at the eastern terminus of the travelled portion of Green Line has been conditionally approved by the Municipality; AND WHEREAS a condition of final approval of development is that Green Line be extended such that the to -be -developed lands have adequate frontage onto Green Line; AND WHEREAS more particularly, the road allowance between Concessions 10 and 11, at Lot 20 contains an unopened portion of road allowance beyond the terminus of the currently traveled and maintained portion of Green Line; AND WHEREAS the Municipality requires extension of Green Line through the lands depicted as PART 1 on Plan 11 R-10796, attached hereto as Schedule "A", which will have the effect of extending the traveled, maintained and constructed portion of Green Line farther to the east; AND WHEREAS the Municipality desires to enter into this Agreement to ensure the orderly construction of the said proposed extension of Green Line; AND WHEREAS the Contractor has the skill, expertise and equipment necessary to construct the extension of Green Line; NOW THEREFORE in consideration of the premises, the payment of the sum of Two Dollars ($2.00) of lawful money of Canada together with other good and valuable consideration by the Owners to the Municipality, the receipt and sufficiency of which is hereby acknowledged, the Owners and the Municipality hereby covenant and agree as follows: GENERAL The Municipality is a corporation incorporated pursuant to the Municipal Act, 2001 S.O. 2001 c. 25 and is governed by Council and operated by administration. The Contractor is a corporation resident in Ontario and incorporated under the laws of the Province of Ontario and has represented to the Municipality that it has the requisite skill, ability, expertise, qualifications and equipment to carry on the Services. 3 Any and all Schedules attached hereto form an integral part of this Agreement. OPSS.MUN1.100 General Conditions of Contract, to the extent that they are applicable given the context of the Construction and that they do not vary or conflict with contract documents in precedence, including this Agreement, are hereby incorporated into and form an integral part of this Agreement. FEES AND DISBURSEMENTS 5 The Contractor shall be paid a fixed price ("Lump Sum") for the construction of Green Line on and over the municipal lands identified as Part 1 on Plan 11 R-10796 including all drainage elements associated therewith in the amount of Seventy Thousand and Eighty - Seven Dollars and Fifty -Eight Cents ($70,087.58) inclusive of HST, as shown in the Cost Estimate attached hereto as Schedule "C". For greater certainty, OPSS.MUNI.100 General Conditions 8.02.05 — Payment on a Time and Material Basis do not apply to this Agreement, save and accept that GC 8.02.05.11 shall apply to the fixed sum set out in this Agreement. TERM Payments under this Agreement will be made only after this Agreement has been duly executed by both parties and the municipality has accepted the Construction as set out in this Agreement. The Contractor shall provide detailed accounts for the Construction. If requested by the Manager of Public Works, the Contractor will make available to the Municipality such accounts, records, receipts, vouchers and documents for the purpose of substantiating its accounts. The Contractor shall carry out the Construction with the utmost dispatch and, subject to delays beyond its control, between the effective date of this Agreement and November 30, 2022. TERMINATION €t The Municipality may terminate this Agreement at any time by providing the Contractor with thirty (30) days' notice. The Municipality may immediately terminate this Agreement upon giving notice to the Contractor where: a_ The Contractor breaches any provision of this Agreement, including but not limited to poor performance by the Contractor; b_ The Contractor is adjudged bankrupt, makes a general assignment for the benefit of its creditors or a receiver is appointed on account of the Contractor's insolvency; c_ The Contractor, prior to or after executing this Agreement, makes a material misrepresentation or omission or provides materially inaccurate information to the Municipality; d. The Contractor assigns this Agreement without the consent of the Municipality; e. The Contractor undergoes a change in control which adversely affects the Contractor's ability to satisfy some or all of its obligations under this Agreement; CONTRACTOR COVENANTS 10. The Contractor covenants as follows: (a) The Contractor shall construct an extension of Green Line on the municipal lands identified as Part 1 on Plan 11 R-10796 (the "Construction"); (b) The Construction shall be in accordance with the drawings prepared by Spriet Associates London Limited, Consulting Engineers, dated June 10, 2021, Project 221121 (the "Accepted Drawings"), including all appurtenances thereto and all details shown on the Accepted Drawings, which are attached to hereto as Schedule "B" and more generally shall conform to the Municipality's Design and Construction Standards 2018. (c) The Construction must be carried out in accordance with good engineering practice and in a good workmanlike manner. Without limiting the generality of the foregoing, the construction must meet with the satisfaction of the Manager of Public Works of the Municipality at the Manager's sole and unfettered discretion. (d) The Contractor must obtain, at its sole cost and expense, all permits, approvals, traffic control and/or road occupancy signage and any other permission or thing that may be required by the Municipality or any other authority of competent jurisdiction including, but not limited to, any Ministry approvals required from the Province of Ontario or permits required by any Conservation Authority, if applicable. (e) The Contractor hereby agrees and acknowledges that no construction may proceed until all certificates of insurance and securities required by this Agreement have been provided to the Municipality and until all necessary permits and approvals have been obtained. (f) The Contractor shall comply with the Workplace Safety and Insurance requirements (WSIA) and Human Rights policies; 4 (g) The Contractor shall obtain and keep current WSIB insurance and to provide the Municipality with proof of such insurance if requested; (h) The Contractor shall ensure that the persons in their organizations who deals with members of the public or other third parties receives training about the provision of goods or services to persons with disabilities as required by the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c.11, as amended; (i) The Contractor shall supply at its sole cost and expense all staff, equipment, accommodations and technical assistance necessary to perform the Construction and assume all overhead expenses in connection with the Construction; (j) The Contractor shall co-operate with the Manager of Public Works and do all things necessary to enable the Manager of Public Works to evaluate the Construction as required. (k) The Contractor shall not employ any sub -consultants or sub -contractors without the express, prior, written approval of the Municipality. 11. ACCEPTANCE (a) Prior to any final inspection by the Manager of Public Works, the design engineers, being Spriet Associates London Limited (or Municipality's designate) shall be required to provide as -built drawings and a clearance letter indicating that the Construction, including all appurtenances and details shown on the Accepted Drawings, is complete and that the Construction meets all aspects of the Accepted Drawings and requirements of this Agreement. (b) The Manager of Public Works, or designate/agent, shall perform a final inspection of the road construction and provide written confirmation of the Municipality's acceptance of the sufficiency of the road construction, OR shall provide written notice of any deficiencies that must be rectified. (c) If any deficiencies are noted then a further final inspection shall be performed following the rectification of such deficiencies. 12. MAINTENANCE AND WARRANTY (a) The Contractor agrees that it shall perform any repairs or maintenance work determined to be necessary by the Municipality at the Manager of Public Works, or designate/agent's, sole discretion for a period of one (1) year following acceptance. 13. APPLICABLE LAW: The Owners agree to comply with all applicable laws of all government bodies and agencies, including all by-law and regulations, and to obtain and pay for all required permits. 14. DISPUTE RESOLUTION: (a) This section supersedes OPSS.MUN1.100 GC 3.14. (b) In the event of any dispute respecting the interpretation of this Agreement of the Municipality's requirements, the matter shall be determined by the Manager of Public Works of the Municipality with respect to any issues relating to the construction of the road and by the Chief Building Official/Drainage Superintendent with respect to any issue related to drainage and grades and subject to subparagraph (b) their respective decision shall be final. (c) Disputes between the Contractor and the Municipality with respect to any provision of this Agreement, unresolved under subparagraph (a) above, shall be referred to arbitration in compliance with the provisions of the Arbitrations Act R.S.O. 1990, as amended, and in particular subject to the following requirements: (i) There shall be a single arbitrator agreeable to the Municipality and the Contractor, unless both are not able to agree on a single arbitrator, in which case there shall be a panel of three arbitrators, with each of the Municipality and the Contractor appointing one arbitrator and those two arbitrators appointing the third. (ii) The decision of the arbitrator or arbitrators as the case may be, shall be final. (iii) The costs of the arbitration shall be borne entirely by the Contractor (iv) Notwithstanding the existence of any such disputes, the Municipality and the Contractor shall continue to carry out their obligations under this Agreement in a timely fashion, and such carrying out of obligations shall be without prejudice to their respective rights under this Agreement. INDEMNITY AND INSURANCE: (a) Until the Municipality has finally accepted the Construction, the Contractor shall indemnify the Municipality, its agents, employees, contractors and subcontractors from and against all expenses, actions, causes of actions, suits, construction liens, claims, demands or administrative orders whatsoever which may arise, either directly or indirectly, by reason of the construction and installation of any and all of the road and other appurtenance construction performed pursuant to this Agreement, including all plans, specifications and contracts therefor and any and all 0 documentation submitted by or on behalf of the Contractor in support of the acceptance of such plans, specifications and contract. Compliance with the insurance requirements of this Agreement shall not be construed as relieving the Owners from responsibility for indemnity of the Municipality for liability not covered by such insurance or in excess of the policy limits of such insurance. (b) The Contractor agrees to maintain insurance in sufficient amount and description as will protect the Contractor and the Municipality from claims for damages, personal injury including death, and for claims from property damage which may arise from the Contractor's operations pursuant to this Agreement, including any act or omission of the Contractor's agents or employees while engage in any activity pursuant to this Agreement and such coverage shall include all costs, charges and expenses reasonably incurred for any injury or damage. (c) In addition to the foregoing, the Contractor covenants and agrees that: (i) The limits of liability for Personal Injury, Bodily Injury and Property Damage combined shall be for not less than Five Million ($5,000,000.00) Dollars for each occurrence. (ii) All policies shall provide that they cannot be cancelled, allowed to lapse or be materially changed (to the detriment of the Municipality) without at least thirty (30) days' notice to the Municipality by registered mail. (iii) The Municipality shall be named as an additional insured and the policy shall include a provision for cross liability. 15. UNSATISFACTORY OR INCOMPLETE WORK: (a) Upon any failure by the Contractor to do any work or rectify any unsatisfactory work upon seven day's written notice, the Manager of Public Works for the Municipality may procure same to be done at the Contractor's expense and all costs may be recovered from any Security held by the Municipality for the purpose of the Construction, whether such Security is received from the Contractor or another entity or persons. In any case of emergency affecting public safety, the said Manager of Public Works may act without notice or on such notice as is reasonable in the circumstances. 16. CONSTRUCTION LIENS: (a) The Contractor shall comply with all of the provisions of the Construction Act, R.S.O. 1990 c. C30, as amended from time to time and without limiting the generality of the foregoing, with regard to any permitted sub -contractor, shall hold in its possession all the statutory holdbacks and any additional funds required to be held by the said Act. These holdbacks and funds shall not be disbursed except in accordance with the Act. (b) The Contractor shall, at its own expense, within ten (10) days of receiving written notice from the Municipality to do so, pay, discharge, vacate, and obtain and register a release of all charges, claims, liens and all preserved or perfected liens, made, brought or registered pursuant to the Construction Act, R.S.O. 1990 c. C 30, which affect any lands of the Municipality, including public highways and road allowances, and which arise out of the performance of this Agreement by the Contractor and its servants, employees, agents, contractors and subcontractors. Should the Contractor fail or refuse to pay, discharge vacate or obtain and register a release of all charges, claims, liens and all preserved or perfected liens, then the Municipality may proceed to take any legal action available to it and the Contractor hereby specifically agrees to indemnify the Municipality of all of its costs associated with taking such legal action including its legal costs on a full indemnity scale. (c) The Manager of Public Works for the Municipality may at any time, authorize the use of all or part of the Security for the Construction, including bank cheque or letter of credit: (i) To pay, discharge, vacate, and obtain and register a release of all charges, claims, liens, and all preserved or perfected liens, made, brought or registered pursuant to the Construction Act, R.S.O. 1990, c. C30, which affect any lands, including public highways and road allowances of the Municipality in the event the Contractor default on the performance of this section, and (ii) To pay to the Municipality any amounts owing to it pursuant to this section, 17. ENTIRE AGREEMENT: This Agreement is the entire Agreement between the Contractor and the Municipality regarding the subject of this Agreement and it can be amended or supplemented only by a document executed in writing by both the Contractor and the Municipality. 18. SEVERABILITY: If any term of this Agreement is found to be invalid, illegal or unenforceable by a court having the jurisdiction to do so, that term is to be considered to have been severed from the rest of this Agreement and the rest of this Agreement remains in force unaffected by that finding or by the severance of that term. 19. CONTEXT. - In this Agreement, unless the context otherwise requires, the singular includes the plural and the masculine includes the feminine gender and a corporation. 20. GOVERNING LAW: This Agreement shall be governed by and construed and enforced in accordance with the laws of the Province of Ontario. 21. NO REPRESENTATIONS OR WARRANTIES: It is acknowledged and agreed that the Municipality has made no representations or warranties whatsoever as to site conditions in the proposed development of the suitability of the site for the construction of a road. 22. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon and shall enure to the benefit of the parties hereto and their respective successors and assigns. 23. NOTICE: Any notice required or permitted to be given hereunder or any tender or delivery of documents may be sufficiently given by personal delivery or, if other than the delivery of an original document, by facsimile transmission to the Municipality at the following address: Municipality of Bayham 56169 Heritage Line P.O. Box 160 Straffordville ON NOJ 1Y0 and to the Contractor at: John Froese 408 Plowman's Line, RR#6 Tillsonburg ON N4G 4G9 John (a-)-Froeseexcavating.com Any notice may also be given by prepaid registered mail, and such notice shall be effective four (4) days following the date of mailing, except in the event that there shall be a disruption in postal services at the date of mailing, in which case notice shall be effective by personal delivery or a facsimile transmission as stated above. Any electronic notice shall be deemed to be served on the day it is sent provided that it is sent to the e-mail address herein noted. Any electronic notice sent after 4:30pm shall be deemed to be served on the following regular business day. 24. HEADINGS: Headings contained in this Agreement are for reference purposes only and do not affect the meaning of this Agreement. [ONE (1) SIGNATURE PAGE FOLLOWS] [THE BELOW SPACE INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF the Corporate parties have affixed their Corporate Seals under the hands of their officers duly authorized in that behalf, and the individual parties have set their hands and seals. SIGNED, SEALED AND DELIVERED 1 FROESE EXCAVATING LTD. i4in Froese I have authority to bind the corporation. THE CORPORATION OF THE MUNICIPALITY OF BAYHAM Ed Ketch baw, Mayor T hayer, Clerk 10 SCHEDULE `A' TO CONSTRUCTION AGREEMENT FROESE EXCAVATING LTD. Survey SCHEDULE `B' TO CONSTRUCTION AGREEMENT FROESE EXCAVATING LTD. Road Construction Design SCHEDULE `C' TO CONSTRUCTION AGREEMENT FROESE EXCAVATING LTD. Construction Cost Estimate