HomeMy WebLinkAboutBy-law No. 2024-042THE CORPORATION OF THE MUNICIPALITY OF BAYHAM
BY-LAW NO. 2024-042
BEING A BY-LAW TO AUTHORIZE THE
EXECUTION OF A CONSTRUCTION AGREEMENT
BETWEEN THE MUNICIPALITY OF BAYHAM AND PBR EXCAVATING INC.
FOR THE CONSTRUCTION OF A PORTION OF UNION STREET, VIENNA
(PART OF ROAD ALLOWANCE BETWEEN PLAN 54 LOTS 2 AND 3 W/S UNON STREET
AND PLAN 54 LOTS 3,8 TO 11 E/S UNION STREET)
WHEREAS the Owners of lands, Johan and Sara Janzen, have applied to the Municipality for
permission to reconstruct that part of the said Union Street road allowance shown as PART 1 on
Plan 11 R-11216, described in Schedule `A' attached hereto and forming part of this By-law, and
have contracted directly with PBR Excavating Inc. to perform the works at the Owners' expense
in order to provide frontage and access to the severed 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, PBR Excavating Inc., 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 PBR Excavating Inc. setting
out the terms and conditions for the construction of Union Street as described in the said
Agreement is hereby approved.
2. THAT the Mayor and Chief Administrative Officer be hereby authorized to execute the
said Agreement.
3_ 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 20TH DAY OF
JUNE 2024.
- t
MAYOR CLERK
Schedule `A' By-law No. 2024-042
DEVELOPMENT AGREEMENT
UNION STREET ROAD CONSTRUCTION
THIS AGREEMENT made in duplicate this ZJ day of)►U2924.
BETWEEN:
PBR EXCAVATING INC.
(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 the extension at the southern terminus of the travelled portion of
Union Street, Vienna, is a condition of Consent Application E84-22 by Johan and Sara Janzen
and conditionally approved by the County of Elgin Land Division Committee on February 23,
2023;
AND WHEREAS more particularly, the road allowance between Plan 54 Lots 8, 9, 10 E/S Union
Street and Plan 54 Lots 2 and 3, W/S Union Street contains an unopened portion of road
allowance beyond the terminus of the currently traveled and maintained portion of Union Street;
AND WHEREAS the Municipality requires the extension of Union Street through the lands
depicted as PART 1 on Plan 11 R-11216, attached hereto as Schedule `A', which will have the
effect of extending the traveled, maintained and constructed portion of Union Street farther to
the south to provide the required lot frontage on an open and maintained road;
AND WHEREAS the Contractor has agreed to construct the Union Street extension to satisfy
the condition of Consent;
AND WHEREAS the Municipality desires to enter into this Agreement to ensure the orderly
construction of the said proposed extension of Union Street;
AND WHEREAS the Contractor has the skill, expertise and equipment necessary to construct
the extension of Union Street;
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:
1. 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.
2. 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.
4. 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.
2. FEES AND DISBURSEMENTS
5. The Contractor shall be paid a fixed price ("Lump Sum") for the construction of Union
Street on and over the municipal lands identified as Part 1 on Plan 11 R-11216
including all drainage elements associated therewith in the amount of Thirty -Nine
Thousand Two Hundred Sixty -Nine Dollars and Twenty-one Cents ($39,269.21)
inclusive of HST, as shown in the Cost Estimate attached hereto as Schedule `C'.
For greater certainty, OPSS.MUN1.100 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.
6. 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.
3. TERM
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 September
30, 2024.
4. TERMINATION
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.
5. CONTRACTOR CONVENANTS
The Contractor covenants as follows:
(a) The Contractor shall construct an extension of Union Street on the municipal
lands identified as Part 1 on Plan 11 R-11216 (the "Construction") which is
attached hereto as Schedule `B';
(b) The Construction shall be in accordance with the drawings prepared by Cyril
J. Demeyere, Consulting Engineers, dated October 30, 2023, Project 23021
(the "Accepted Drawings"), including all appurtenances thereto and all details
shown on the Accepted Drawings, which are attached hereto as Schedules
'Cl', `C2' and `C3' 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 Act
requirements (WSIA) and Human Rights policies;
(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;
Q) 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.
6. ACCEPTANCE
(a) Prior to any final inspection by the Manager of Public Works, the design
engineers, being Cyril J. Demeyere 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.
7. 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.
(b) A security amount equaling 25% of the estimated cost will be retained for the
one (1) year warranty period and will be returned once the warranty period is
complete and final written acceptance provided by the Manager of Public
Works.
8. 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.
9. 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 both the Chief Building Official and 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.
0) 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.
10. 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
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.
11. UNSATISFACTORY OR INCOMPLETE WORK
Upon any failure by the Contractor to do any work or rectify any unsatisfactory work
upon seven (7) 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.
12. 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.
13. 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.
14. 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.
15. CONTEXT
In this Agreement, unless the context otherwise requires, the singular includes the
plural and the masculine includes the feminine gender and a corporation.
16. GOVERNING LAW
This Agreement shall be governed by and construed and enforced in accordance
with the laws of the Province of Ontario.
17. 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.
8
18. 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.
19. 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 or email to the Municipality at the
following address:
Municipality of Bayham
56169 Heritage Line
P.O. Box 160
Straffordville ON NOJ 1Y0
Fax: 519-866-3884
bavham6a bavham.on.ca
and to the Contractor at:
PBR Excavating Inc.
47 Clearview Dr.
Tillsonburg ON N4G 4G8
herman(ja�pbrexcavatina.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.
20. HEADINGS
Headings contained in this Agreement are for reference purposes only and do not
affect the meaning of this Agreement.
21. SUMMARY OF SCHEDULES
SCHEDULE `A'
SURVEY
SCHEDULE `B1'
GRADING PLAN
SCHEDULE `B2'
SERVICING PLAN
SCHEDULE `B3'
ROADWORK PLAN
SCHEDULE `C'
PBR EXCAVATING ESTIMATED COST
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.
9
SIGNED, SEALED AND DELIVERED
PBR EXCAVATING INC.
Herman Peters. Owner
1 have authority to bind the corporation.
THE CORPORATION OF THE
MUNICIPALITY OF BAYHAM
Ed Ketcha6aw, Mayor
gayer,
inistrative Officer
We have authority to bind the
Corporation
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P.B.R. Excavating Inc
47 Clearview or
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519.544.1761
Herman@pbrexcavating.com
HST (ON) Registration No.: 806969283RT0001
Estimate
ADDRESS
John Janzen
DESCRIPTION
27 Union St, Vienna
E C E I V E
MAY 3 0 2024
MUNIGMAUTY OF BAYHAM
SHIP DATE 25/11/2023
ESTIMATE 205
D91"E. 28/05/2024
EXPIRXI ION 25/11/2023
DATE.
AMOUNT
Road cut and remove existing asphalt. Excavate and install 125mm sanitary service to property, core in to existing 10,235.59
manhole includes rebenching and backfill trench with bedding. Excavate and install 25mm water service to property,
live tap to municipal watermain and backfill.
Strip topsoil and prep area for street extension. Supply, place and compact granularA and B for new street extension. 11,567.92
Supply and place rip rap at end of road.
Supply and install dead end barrier with checker board sign at the end of road. 4,500.00
Supply and install HL8 hot mix asphalt, compact/roll smooth to finished thickness of 50mm. Supply and install HL3 hot 8,448.00
mix asphalt, compact/roll smooth to finished thickness of 40mm (Price based on site plan provided for the road
restoration, driveway and turnaround not included)
;4e k,ok fof a d to ,v;orkmg wifh you SUBTOTAL 34,751.51
HST (ON) @a 13% 4,517.70
TOTAL $39,269.21
Acc<=.glee b
A,ce ted Date
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