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HomeMy WebLinkAboutBy-law No. 2022-081THE CORPORATION OF THE MUNICIPALITY OF BAYHAM BY-LAW NO. 2022-081 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 January 1, 2023. READ A FIRST, SECOND AND THIRD TIME AND FINALLY PASSED THIS 15t" DAY OF DECEMBER 2022. CONSULTING SERVICES AGREEMENT This consulting services agreement is between: Municipality of Bayham (" Bayham ") - and - Paul Hillenaar ("Consultant ") The parties agree as follows: Retainer (1) Bayham hereby retains the Consultant to provide the consulting services set out herein (the "Services"), and the Consultant shal I provide those Services to Bayhamunderthe general direction and control ofBayham and subject to the provisions of this agreement. Services (1) The Services include the following: (a) Provide Building Official duties which includes dealingwithstaff and public, (b) Complete plans examination and inspection services by reviewing plans and corresponding with the public and staff; (c) Building inspections and issuance of building permits where applicable. (d) With the consentofthe Consultant, the Municipality may, inwriting, delete, add to, vary or otherwise altertheServices. (2) The Consultant shall, provide services in accordance with the work plan commencing January 2, 2023 and ending June 30, 2023. (3) The Consultant shal I providethe Servicesskillful ly, 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 Bayham otherwise, in accordance with the staffing schedule and within the estimated time lines and estimated budgets. Personnel (1) The ConsultantshallprovidetheServicesthroughPersonnelapprovedinwritingby Bayham.The Personnel approved for this project areas follows: (a) Paul Hillenaar (b) Chris Peck (2) 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 Township confirmation that the Province of Ontario has certified that the Consultant is authorized to provide the Services in a form satisfactory to Bayham, acting reasonably. Work Product {1 All information in any form, prepared by or for the Consultant as part of the Services (the "Work Product") shall be, unless approved by Bayham in writing to the contrary, the sole property of Bayham and Bayham 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 Bayham. {2) The Consultant shall promptly sign all documents and take all actions that may be necessary to ensure that Bayham 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 Bayham. (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 Bayham. 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 Bayham. Use of Confidential Information (1) In this agreement the following terms have the corresponding meanings: (0 "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 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 bylaw to disclose Confidential Information, it shall promptly notify the Disclosing Party so that the Disclosing Party may intervene to prevent the disclosure. (8) 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 V1 The Consultant shall treat Paul HillenaarasBgft�sprincipal contact and source of instructions in respect of all aspects of this agreement, unless otherwise directed or permitted in writing by Bayham. (2) Bayham shall treat Paul Hillenaar as the Consultant's principal contact and source of reporting in respect of all aspects of this agreement, unless otherwise directed or permitted in writing by Bayham. (3i The Consultant shall not communicate with the media about the Services except with the prior written approval of Bayham. Chargeable Amounts (1) The Consultant shall, at its own sole cost, and at no cost to Bayham, except as specifically provided inthis agreement oragreed to by Bayham 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 or long distance telephone, facsimile, postage, courier or othertransportation or communication costs, and photocopying, printing or other reproduction costs. For greater certainty, the Consultant shall not, unless specifically agreed to by Bayham in writing, charge any ofsuch coststo Bayham as disbursements. (� Bayham reservesthe rightto provide anyof the above at no costtothe Consultant (3) The Consultantwill be compensated at a rate of $0.64 per kilometer to and from the Consultant's home location and fortravel within theTownshipwhen onTownship related businesswhen a Municipal vehicle is not available. {4) The Consultant may charge Bayham forthe provision of the Services amounts based onthefollowingfee rates: $ 100.00 per hour orsuch other amounts, which are agreed to in writing bythe parties forspecific portions of the Services. The Consultantshall not increase anyfee rate unless Bayham has provided its prior written consent. (S) The Consultant maycharge Bayhamforany Harmonized SalesTaxpayable onthe fees and disbursements charged to Bayham bythe Consultant. (6M The Consultant shall not charge Bayhamforvalue-addedorpremium billing. (7) Notwithstandinganythingtothecontrarycontainedinthisagreement,ifBayham decides at anytime, for any reason, to discontinue a particular portion of the Services, the Consultant shall not charge Bayhamforanyamount overandabove payment, including payment on a pro -rated basis if applicable, for the chargeable fees and disbursements incurred in respectof such discontinued portion oftheServices uptothe date that Bayham gives to the Consultant written notice of such decision to discontinuethat portion of the Services, ora laterdate if work, already commenced by the Consultant, cannot reasonably be discontinued until such later date. (8) Notwithstandinganythingtothe contra rycontainedinthis agreement, ifthisagreement is terminated priorto completion of the provision of the Services, the Consultantshall not charge Bayham for any amount over and above payment, including payment on pro -rated basis if applicable, forthechargeablefeesand 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. 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 for which the Consultant isrequesting reimbursement; and (c) The amount of Harmonized Sales Tax payable on its fees and disbursements. (2) If requested by Bayham, the Consultant shall make available to Bayham full accounts, records, receipts, vouchers and documents for the purpose of substantiating its charges. Payment Bayham shall pay the Consultant the properly charged amounts incurred by the Consultant in providing the Services. (2) Despite any other provision in this agreement, Bayham 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. Bayham is not required to pay any interest on any account in respect of any time during which such account is under review. 10 Indemnification and Insurance (1) The Consultant shall indemnify Bayham and 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 Bayham's election, either assume Bayham's defense of any proceeding brought in respect of such loss or liability, or cooperate with Bayham in the defense, including providing Bayham with prompt notice of any possible loss or liability and providing Bayham 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 Bayham. (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 Bayham from time to time, provide evidence, satisfactory to Bayham, of the following insurance coverages, all taken out with insurers licensed totransact insurance business in Ontario and satisfactory to Bayham: (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. Bayham will accept responsibility for obtaining from or on 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 Bayham'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 Bayham. 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 Township 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 (1 ) The Consultant is an independent contractor of Bayham. The Consultant shall not, except as Bayham may specifically authorize in writing, enter into any contracts or commitments in the name of or on behalf of Bayham, or bind Bayham in any respect whatsoever. The Consultant is not a partner, joint venturer, agent or employee of Bayham. (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 thisagreement. (3� Until five years after the termination of this agreement, the Consultant shall not, except with the prior written approval of Bayham, enter into any relationship with any person, other than Bayham, in respect of consulting services which touch on anyof the matters or issues which form the subject matter of the Services. 14. Bayham Responsibilities (1) Bayham shall provide instructions, guidance and assistance to the Consultant relating to the provision of the Services. (2) Bayham 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, Bayham employees for the purpose of any necessary consultation. (3) Bayham shall provide the following equipment for use by the consultantwhen carrying out his duties within Bayham: a) Municipal 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 thissection. (3) The initial addresses for Bayham are as follows: P.O. Box 160 56169 Heritage Line Straffordville ON NOJ 1Y0 (4) The initial addresses forthe Consultant are as follows: Paul Hillenaar 12 Melissa Court Ayr ON NOB 1E0 16. Force Majeure (1) 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. V. Waiver (1) A party may waive any of its rights, powers or remedies hereunder. No waiver is effective unless made in writing. () 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. 19. Termination (1} The Municipality may, with or without cause, terminate this agreement upon at least 30 days written notice with a minimum agreement length of 3 months. (2) The Consultant may, with or without cause, terminate this agreement upon at least 30 days written notice. 19 Interpretation ( 1 ) This agreement is to be construed with all changes in number and gender as may be required by the context. (2) The division of this agreement into sections, subsections and clauses isforconvenience of reference only and does not affect the interpretation. () The obligations of the parties contained herein have, where applicable, the status of representations, warranties and covenants bythe respective obligated party. (4) 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. (5) Time is to be of the essence of this agreement, including if any extension is permitted. 20 Signing (�) 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 oft his agree mentinaccord ancewith the provisions set out in this agreement for delivery of Notices. (2� This agreement will become effective when both parties have signed it. The datethis agreement is signed bythe last party to sign it {as indicated by the date associated with that party's signature) will be deemed the date of this agreement. 21, Miscellaneous (1) All provisions of this agreement are severable, and ifanyprovisionisdeclaredinvalid, void or unenforceable bya court of competentjurisdiction, the remaining provisions of this agreement remain in full force and effect. (2) This agreement is to enure to the benefitofand 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. Date Thomas Th yer CAO I Clerk, Municipality Bayham Date Ed Ketchabaw Mayor, Municipality Bayham Date Paul Hillenaar Consultant