Loading...
HomeMy WebLinkAboutBy-law No. 2024-002 THE CORPORATION OF THE MUNICIPALITY OF BAYHAM BY-LAW NO. 2024-002 A BY-LAW TO AUTHORIZE THE EXECUTION OF AN AGREEMENT BETWEEN THE CORPORATION OF THE MUNICIPALITY OF BAYHAM AND THE GRAND RIVER CONSERVATION AUTHORITY FOR RICHMOND COMMUNITY DRINKING WATER SYSTEM WORKS 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 source water protection funding has been made available through the Ministry of the Environment, Conservation and Parks (MECP); AND WHEREAS the Richmond Community Water Supply System was successful in receiving $75,000 of said funding for monitoring and analysis of nitrates; AND WHEREAS Council is desirous of entering into an agreement with the Grand River Conservation Authority for the completion of these works,- 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 Corporation of the Municipality of Bayham and the Grand River Conservation Authority for Richmond Community Drinking Water System Works; 2, AND THAT this by-law shall come into full force and effect upon final passing. READ A FIRST, SECOND AND THIRD TIME AND FINALLY PASSED THIS 18th DAY OF JAN UARY, 2024. MAYOR „ C{' X 0" MEMORANDUM OF AGREEMENT prepared in December, 2023. BETWEEN The Grand River Conservation Authority Hereinafter called the "Conservation Authority" THE PARTY OF THE FIRST PART AND The Corporation of the Municipality of Bayham Hereinafter called the "Municipality" THE PARTY OF THE SECOND PART WHEREAS The Lake Erie Region Source Protection Committee is required to develop, and, from time to time, update a Source Protection Plan under the Clean Water Act, 2006, and The Ontario Ministry of the Environment, Conservation and Parks, hereinafter referred to as "MECP", has provided funding for activities associated with completing watershed science for the purposes of updating the Long Point Region Source Protection Area Assessment Report and consequently the Long Point Region Source Protection Area Source Protection Plan, and The Municipality wishes to undertake monitoring and analysis of nitrate pertaining to the Issue Contributing Area of the Richmond Community Drinking Water System, and hereinafter referred to as the "Project", and The scope of work, deliverables and expenditures respecting the Project, outlined in Schedule A as attached meets the eligibility criteria as executed in the Ontario Transfer Payment Amending Agreement for Drinking Water Source Protection effective November 1, 2023, hereinafter referred to as the "Grant Funding Agreement", and The Conservation Authority has authorized the release of funds to the Municipality corresponding to the planned expenditures described in Schedule A, NOW THEREFOR WITNESSETH that in consideration of the covenants contained herein, the Conservation Authority and the Municipality mutually agree as follows: I 1.0 ROLES AND RESPONSIBILITIES OF THE PARTIES 1.1 Responsibilities of the Conservation Authority The Conservation Authority shall: 1. provide funding to the Municipality in accordance with the terms of this Agreement; and 2. provide financial and progress reports to MECP as set out in the Grant Funding Agreement, or as otherwise established by MECP; 1.2 Responsibilities of the Municipality The Municipality shall: 1. provide project management for the tasks identified in Schedule A for the Municipality and the consultant(s) retained by the Municipality (the "Consultant(s)"); 2. provide financial and progress reports to the Conservation Authority in support of the overall financial and progress reporting that the Conservation Authority is required to provide to MECP under the Grant Funding Agreement, and outlined in Schedule A, or as otherwise established by the MECP in direction to the Conservation Authority; 3. undertake and complete the tasks as set out in Schedule A, in good workmanlike order; 4. contract for consulting services; and 5. provide copies of deliverables, and any subsequent updates made during the term of this Agreement, to the Conservation Authority in accordance with the format and timelines specified in Schedule A. 2.0 TERMS 2.1 Effective Date This Agreement will come into effect upon signing by both parties ("Effective Date"). 2.2 Entire Agreement All attached schedules constitute part of this Agreement. The Schedules include: Schedule A: Project Scope of Work, Deliverables and Expenditures 2.3 Modification This Agreement may be amended only by a written notice duly executed by both parties. No modification, change, or amendment of this Agreement shall be valid or deemed to be valid unless in writing and signed by both parties. 2.4 Disputes All disputes respecting the subject-matter of this Agreement or its interpretation shall be resolved in accordance with the following: The parties shall attempt to resolve any dispute by dealing with each other directly. In the event that the parties cannot resolve the dispute in this manner within thirty (30) days after the dispute is raised, then either party may take the dispute to the appropriate court in the municipality where they are located. 3.0 FINANCIAL AND REPORTING 3.1 Budgets The parties agree that the Project budget shall be as set out in Schedule A. Any changes to the scope of work, deliverables and planned expenditures as set out in Schedule A must be mutually agreed to in writing by the parties as per Section 2.3 of this Agreement and be eligible under the criteria established in the Grant Funding Agreement. 3.2 Payment Funding for the Project is being supplied by the MECP through the Conservation Authority. Upon completion of the Project, but no later than the deadline stipulated in Section A.2 of Schedule A, the Municipality is obligated to furnish the Conservation Authority with the specified deliverables outlined in Section A.2. Subsequently, within five (5) business days following the provision of said deliverables, the Municipality is required to submit an invoice detailing all expenses related to the Project incurred up to the date of deliverable submission. Upon the Conservation Authority's receipt of both the deliverables and corresponding invoice, it commits to promptly furnish the requisite documentation to the MECP for the final audit, which the Municipality acknowledges is requisite for the final approval of funding. Following the approval of funding, the Conservation Authority pledges to remit the designated amounts, as specified in Section A.1 of Schedule A, to the Municipality. 3.3 Repayment of Funds If the Municipality commits an Event of Default, as set out in section 9, the Conservation Authority may, in its sole discretion: (1) demand the repayment of any funds advanced under this Agreement and any interest earned on such funds. If the Conservation Authority demands the payment by the Municipality of any funds or interest on the funds pursuant to this Agreement, the amount demanded that is in possession and not duly committed or payable to third parties in accordance with this Agreement, shall be deemed to be a debt due and owing to the Conservation Authority by the Municipality, and the Municipality shall pay the amount to the Conservation Authority immediately unless the Conservation Authority directs otherwise. The Conservation Authority may charge the Municipality interest on any amount owing by the Municipality at the then current interest rate charged by the Province of Ontario on accounts receivable. The Municipality shall pay the amount demanded by cheque payable to the Conservation Authority; (2) seek an extension of the deadlines stipulated in this agreement and make good faith efforts to secure funding approval for the Project from the MECP; or (3) terminate the Agreement. Upon an Event of Default, the Conservation Authority retains the right to exercise any combination or multitude of the aforementioned rights. While not in any way limiting the discretion of the Conservation Authority, it is expressly stated that the Conservation Authority's primary inclination will be to pursue an extension of the specified deadlines. 3.4 Schedule and Project Reporting The parties agree that they will each use their reasonable best efforts to perform their obligations according to the work plan outlined in Schedule A, and in accordance with the Clean Water Act, 2006, Ontario Regulation 287107 (General), and the Technical Rules under the Clean Water Act. Within 10 business days of receiving a written request from the Conservation Authority, the Municipality shall prepare and provide progress reports to the Conservation Authority summarizing the financial status of the Project, broken down by fees and disbursements, an estimate of the percentage of completion of the Project on a task by task basis, and an estimate of the funding needs for the completion of the project. The Municipality acknowledges that the financial and progress reports to the Conservation Authority must be submitted on the dates specified in Schedule A. Failure to provide the reports by the requisite date may result in a loss of funding, subject to the funding approval by the MECP. The Municipality will provide to the Conservation Authority a final project report upon the completion of the Project that includes a detailed financial statement and summary of activities and deliverables. 3.5 Records and Audit The Municipality, when requested by the Conservation Authority, shall provide copies of receipts with respect to any disbursements for which the Municipality claims payment under this Agreement and upon request of the Conservation Authority make available for audit all records respecting the Project. In order to provide data for the calculation of fees on a time basis, the Municipality shall keep a detailed record of the eligible hours worked by, and the salaries paid to, the Municipality's staff employed on the Project. Within 2 business days of receipt of written request by the Conservation Authority for the same, the Municipality shall release such records to the Conservation Authority. The Conservation Authority will not request 4 release of the detailed record unless it is required to do so under the provisions of the Grant Funding Agreement. 4.0 INTELLECTUAL PROPERTY RIGHTS 4.1 Municipal Output In this Agreement, "Municipal Output" includes but is not limited to any reports, templates, studies, compilations and collections of data, software, source code and related documentation, and other materials or documentation written, designed or produced by or for the Municipality pursuant to or in connection with this Agreement in any medium or format. The Municipality and/or contributing third party shall retain right, title and interest in the Municipal Output. 4.2 Grant of License The Municipality hereby grants to the Conservation Authority a non-terminable, perpetual, royalty-free, non-exclusive, worldwide license to use, distribute, sublicense, reproduce, manufacture, copy, create derivative products and otherwise deal with the Municipal Output. This license shall survive any termination or expiry of this Agreement. Where the Municipality is unable to grant to the Conservation Authority a license with these terms, the Municipality must advise the Conservation Authority prior to commencing work on the Project. 4.3 Representation and Warranty The Municipality represents and warrants that it shall at all material times have the right, title, and interest in and to, or has secured the necessary licensed rights to,the Municipal Output that it needs to make this grant of license to the Conservation Authority. This representation and warranty shall survive any termination or expiry of this Agreement. 5.0 GENERAL PROVISIONS 5.1 Confidentiality The parties acknowledge and agree that they are bound by the provisions of the Municipal Freedom of Information and Protection of Privacy Act ("MFIPPA") in the performance of the Agreement and that, except as required by MFIPPA or any other legal authority, the parties will not divulge any confidential information acquired in the course of carrying out the services provided herein, This requirement shall not prohibit the Municipality from acting to correct or report a situation which the Municipality may reasonably believe to endanger the safety or welfare of the public, provided that the Municipality notifies the Conservation Authority of what is intended. 7 5.2 News Release Without the prior written consent of the Conservation Authority, the Municipality agrees not to disclose, release, or publish any information pertaining to funding received under this Agreement through news releases, social media posts, or any other public communication. The Municipality may request written permission from the Conservation Authority for such disclosures, and the Conservation Authority reserves the right to grant or deny permission at its sole discretion. This confidentiality obligation shall survive the termination or expiration of this Agreement. Notwithstanding the above, Municipality may disclose Funding Information if required by applicable law, provided that the Municipality notifies the Conservation Authority of what is intended. This requirement shall not prohibit the Municipality from acting to correct or report a situation which the Municipality may reasonably believe to endanger the safety or welfare of the public, provided that the Municipality notifies the Conservation Authority of what is intended. 5.3 Insurance The Municipality represents and warrants that it shall take out and keep in force until this Agreement is no longer in effect, such policies of insurance as are reasonably prudent in the performance of its obligations herein contained. 5.4 Successors and Assignment This Agreement shall ensure to the benefit of and be binding upon the parties hereto and, except as otherwise provided herein, upon their respective executors, administrators, successors and assigns. 5.5 Relationship of the Parties The parties hereto acknowledge, understand and agree that they are neither partners nor joint venturers but are independent contractors. Neither party is the agent for the other party. 5.6 Qualified Persons The Municipality represents and warrants that all work performed as part of this Agreement will be undertaken and completed by qualified persons and in good workmanlike order. The Municipality represents and warrants, and must provide written confirmation prior to commencing work on the project, where applicable, that all persons entering private property for the purpose of collecting information under this Agreement have completed the Training required under Section 88 (4) of the Clean Water Act, 2006 and Section 57 of Ontario Regulation 287/07 (General), or be accompanied by someone who has completed this Training. G 6.0 WORK CARRIED OUT BY A THIRD PARTY In the event that the Municipality enters into an agreement with a Consultant to carry out work required to meet its obligations under the terms of this Agreement, the Municipality (the "Client") shall include the following terms in any such agreement, herein referred to as the "Consultant Agreement". The Municipality may, at its discretion, substitute its preferred wording for the clauses, provided that the intent of the clauses is preserved. (1) Intellectual Property Rights Consultant Output For the purpose of the Consultant Agreement, "Consultant Output" includes, but is not limited to reports, studies, templates, compilations and collections of data, software, source code and related documentation, and other materials or documentation written, designed or produced by or for the Consultant pursuant to or in connection with the Consultant Agreement in any medium or format. The Consultant shall assign all rights, title and interest in the Consultant Output to the Client. The Consultant must advise the Client prior to commencing any work on the project if full rights, title and interest cannot be assigned. Assignment of Intellectual Property Rights If the assignment of full rights,title and interest is not possible, the Consultant shall grant to the Client an exclusive, worldwide, perpetual, royalty free, fully paid-up license to use, distribute, sublicense, reproduce, modify, manufacture, copy, create derivative products, and otherwise deal with the Consultant Output. The Consultant must advise the Client prior to commencing any work on the project if it will be unable to grant this license. The Consultant shall not incorporate into any deliverables anything that would restrict the right of the Client to modify, further develop or otherwise use the Consultant Output. Moral Rights At the request of the Client, at any time or from time to time, the Consultant shall execute and shall cause its directors, officers, employees, agents, partners, affiliates, volunteers or subcontractors to execute an irrevocable written waiver of any moral rights or other rights of integrity in the Consultant Output in favour of the Client, and which waiver may be invoked without restriction by any person authorized by the Client to use the Consultant Output. The Consultant shall deliver such written waiver(s) to the Client within 10 business days of the receipt of the request from the Client. Representation and Warranty The Consultant represents and warrants that it shall at all material times have the right, title, andlor interest in and to the Consultant Output that it needs to legally and validly assign all right,title and interest in the Consultant Output, or, where not possible, to make a grant of license of the Consultant Output to the Client. 7 Any assignment of rights outlined in Section 6.0 and the above representation and warranty shall survive any termination or expiry of this Agreement or the Consultant Agreement. (2) Consultant Deliverables The Consultant shall provide copies of deliverables to the Client in accordance with the format and timelines specified in Schedule A of the Consultant Agreement. (3) Confidentiality The Consultant shall not divulge any confidential information acquired in the course of carrying out the services provided herein. No such information shall be used by the Consultant on any other project without approval in writing by the Client. This requirement shall not prohibit the Consultant from acting to correct or report a situation which the Consultant may reasonably believe to endanger the safety or welfare of the public, provided that the Consultant notifies the Client of what is intended. (4) Termination The Client may at any time, by notice in writing to the Consultant, suspend or terminate the services or any portion thereof at any stage of the undertaking. Upon receipt of such written notice,the Consultant shall perform no further services other than those reasonably necessary to close out the Consultant's services. In such event, the Consultant shall be paid by the Client for all services performed and for all disbursements incurred pursuant to this agreement and remaining unpaid as of the effective date of such termination. No payment shall be awarded to the Consultant upon the termination of this agreement by the Client beyond the services performed and for all disbursements incurred pursuant to this agreement and remaining unpaid as of the effective date of such termination. If the Consultant is practicing as an individual and dies before services have been completed, this agreement shall terminate as of the date of death and the Client shall pay for the services rendered and disbursements, incurred by the Consultant to the date of such termination. (5) Qualified Persons The Consultant represents and warrants that all work performed as part of the Consultant Agreement will be undertaken and completed by qualified persons, where applicable, meaning all persons entering private property for the purpose of collecting information under this Agreement have completed the Training required under Section 88 (4) of the Clean Water Act, 2006 and Section 57 of Ontario Regulation 287/07 (General), or be accompanied by someone who has completed this Training. 7.0 INDEMNITIY The Municipality shall indemnify and save harmless the Conservation Authority, its directors and officers, its representatives and employees, from and against all claims, actions, losses, costs, liability, expenses, and damages of every nature and kind whatsoever (including judgments, settlements and reasonable legal fees) suffered, incurred or imposed by it or them as a result of any negligent act, breach of an agreement, or omission of the Municipality, or the employees, officers, councillors or agents of the Municipality in the performance of its obligations under this Agreement. The Conservation Authority agrees to indemnify and save harmless the Municipality, its employees, officers, and councillors, from and against all claims, actions, losses, costs, liability, expenses and damages of every nature and kind whatsoever (including judgments, settlements and reasonable legal fees) suffered, incurred or imposed by reason of any negligent act or omission of the Conservation Authority or its employees, officers or agents in the performance of its obligations under this Agreement. 8.0 GOVERNING LAW This Agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. 9.0 EVENT OF DEFAULT Each of the following events will constitute an Event of Default: (a) in the opinion of the Conservation Authority, the Municipality breaches a representation, warranty, covenant, or other material term of this Agreement, including failing to do any of the following in accordance with the terms and conditions of this Agreement: a, carry out the Project; b. use or spend Funds; or c. provide, in accordance with sections 3.4 & 3.5, reports as may have been requested or required. 10.0 NOTICE All notices and communications required to be given pursuant to this Agreement by a party shall be in writing to the contacts and in the manner prescribed below. Notice shall be given by: (i) Personal delivery, effective at the time of delivery; (il) Fax, effective at the time of receipt by the sending party of confirmation of its successful transmission to the receiving party; (iii) Email, effective at the time the email enters the receiving party's email inbox; or (iv) Registered mail, effective on the fifth day following the deposit of a properly addressed notice in the mail. Notice shall not be given by registered mail in the event of an actual or threatened disruption of postal service. CONSERVATION AUTHORITY: Samantha Lawson, Thomas Thayer Chief Administrative Officer Chief Administrative Officer Grand River Conservation Authority Municipality of Bayham 400 Clyde Road, PO Box 729 56169 Heritage Line, PO Box 160 Cambridge, ON N 1 R 5W6 Strafford, ON NOJ 1Y0 T: (519) 621-2763 ext. 2210 T: 519-866-3884 E: slawson@grandriver.ca E: tthayer@bayham.on.ca 11.0 SURVIVAL All sections intended to survive shall survive the expiry or termination of this Agreement. 12.0 TERM AND TERMINATION 12.1 Term The term of the Agreement will commence on the Effective Date and will expire 90 days after delivery of the Final Report specified in Schedule A, unless terminated earlier. 12.2 Termination and Suspension Either party may terminate this agreement without cause and for any reason whatsoever on at least 30 days' notice in writing to the other party. Upon receipt of such written notice from the Conservation Authority, the Municipality shall perform no further services other than those reasonably necessary to complete the services being worked on by the Municipality at that time. Upon termination of this Agreement, the Conservation Authority shall pay the Municipality for all services performed and for all disbursements incurred pursuant to this Agreement and remaining unpaid as of the effective date of such termination; provided, however, that the Conservation Authority may demand the repayment of any Crown funds paid by the Conservation Authority to the Municipality under this Agreement remaining in the possession or under the control of the Municipality and not committed or payable to third parties for expenses incurred in accordance with this Agreement prior to the date of termination; and the Municipality shall promptly comply with such demand. If the Conservation Authority is in default in the performance of any of the Conservation Authority's obligations set forth in this Agreement,the Municipality may, by written notice to the Conservation Authority, require such default be corrected. If, within 30 days of receipt of such notice, such default shall not have been corrected, the Municipality may immediately terminate this Agreement. In such event, the Municipality shall be paid by 10 the Conservation Authority for all services performed and for all disbursements incurred pursuant to this Agreement and remaining unpaid as of the effective date of such termination. 13.0 ELECTRONIC COUNTERPART This Letter Agreement may be executed in counterparts in writing or by electronic signature and delivered by mail, facsimile or other electronic means, including in Portable Document Format (PDF), no one copy of which need be executed by all of the parties, and all such counterparts together shall constitute one agreement and shall be a valid and binding agreement among the parties hereto as of the date first above written. IN WITNESS THEREOF the parties hereto have caused to be executed those present by their officers properly authorized in that behalf on the day and year first above written. SIGNED, SEALED AND DELIVERED Municipality The signatory shall have the authority to bind the Municipality for purposes of this agreement mac' -Z- Date 5d Ketchabaw Mayor, Municipality of Bayham NeC. 2I _ . ` Date McOCJCr) Elhok}— cie Conservation Authority The signatory shall have the authority to bind the Conservation Authority for purposes of this agreement amu�ib�. February 1, 2024 Date Samantha Lawson CAO, Grand River Conservation Authority 11 Schedule A: Project Scope of Work, Deliverables and Expenditures A.I. Project Work Plan and Budget: Task Name Responsible Description of Work Budget Agency Task 1: Municipality In accordance with Part V of the Director's $75,000 Monitoring and of Bayham Technical Rules pertaining to issue analysis of contributing areas: monitor, sample and nitrate analyze nitrate data within the existing issue contributing area of the Richmond Community Drinking Water System within the Municipality of Bayham to better understand the source and distribution of nitrate in the confined municipal aquifer. A.2. List of Deliverables: Deliverables Completion Date •Final project report and any associated memoranda (PDF March 31, 2024 format) A.3. Project Financial and Progress Reporting: The municipality will provide the following reports to the Grand River Conservation Authority on the dates indicated: Reports Description of Contents Due Date Final Report Detailed financial statement and summary of March 31, 2024 activities and deliverables. A.4. Project Contacts: Organization Name, title Role Contact Information Grand River Shari Dahmer, Conservation sdahmeraarandriver.ca Conservation Source Protection Authority contact for Authority Program Manager MCA Municipality of Ed Roloson, Municipal contact for ERoloson@bavham.on.ca Bayham Manager of MCA Capital Projects and Water Wastewater Schedule A I Page i