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3821 To Authorize a Professional Services Contracts Agreement Between the Corporation of the Town of Tillsonburg and Mary-Anne MurphyTHE CORPORATION OF THE TOWN OF TILLSONBURG BY-LAW NUMBER 3821 A BY -LAW to Authorize a Professional Services Contract Agreement Between the Corporation of the Town of Tillsonburg and Mary-Anne Murphy. WHEREAS the Corporation of the Town of Tillsonburg is desirous of entering into an agreement with Mary-Anne Murphy, for the purposes of developing governance and operational capacity within the cultural sector in Tillsonburg through a common support network called the Tillsonburg Cultural Improvement Alliance; THEREFORE the Council of the Town of Tillsonburg enacts as follows: 1. THAT the Professional Services Contract Agreement attached hereto forms part of this by-law; 2. THAT the Mayor and Clerk be hereby authorized to execute the attached agreement on behalf of the Corporation of the Town of Tillsonburg. This by-law shall come into force and take effect immediately after the final passing hereof. READ A FIRST AND SECOND TIME THIS 12th DAY OF MAY, 2014. READ A THIRD AND FINAL TIME AND PASSED THIS 12th DAY OF MAY, 2014. CLERK -Donna Wilson PROFESSIONAL SERVICES CONTRACT AGREEMENT Project Coordination, Tillsonburg Cultural Improvement Alliance BETWEEN: AND The Corporation of the Town of Tillson burg (the "Town") Mary-Anne Murphy ("the Contractor") WHEREAS a consortium of the Tillsonburg Arts & Crafts Guild, the Tillsonburg & District Historical Society, Oxford Creative Connections Inc. and the Town was formed to develop governance and operational capacity within the cultural sector in Tillsonburg through a common support network (the "Project") called the Tillsonburg Cultural Improvement Alliance ("CIA"); AND WHEREAS the Town has received funding from the Government of Ontario for the purposes of developing the Project (the "Funding"); AND WHEREAS the Town is desirous to retain a project coordination facilitator that will assist the Town to accomplish the deliverables of the Project and commitments required pursuant to the Funding; AND WHEREAS the Contractor and Town are both desirous to enter into this contract (the "Agreement"); THEREFORE IN CONSIDERATION for the covenants, payments and promises as contained in this Agreement the Parties agree as follows: A. Duration of Agreement 1. The Term of this Agreement, subject to the termination provisions, shall be for eleven months (the "Term") and shall commence on May 1, 2014 (the "Commencement Date") and terminates on March 31, 2015 (the "End Date"). The Contractor acknowledges and accepts that on the conclusion of the Term the Contractor shall not be entitled to any notice of termination, pay in lieu of notice, severance of any kind or damages of any kind whatsoever. The Parties expressly acknowledge that this Agreement is a fixed term contract. 2. This Agreement and/or the Term may be only extended by the mutual consent of both Parties (the "Extension"). If a Party desires to extend this Agreement beyond the End Date then written notice must be provided to CIA Project -Professional Services Contract -Final.docx 1/11 02-May-2014 the other Party no later than 30 days prior to the End Date or by such date as may be mutually agreed upon between the Parties (the "Extension Notice"). Upon delivery of the Extension Notice the Parties shall negotiate for the length of the extension and such additional or other amendments. If the Parties cannot agree on the terms of the Extension then this Agreement shall terminate on the End Date in accordance with Article 1 of this Agreement. B. Compensation 3. As full compensation for the Services the Town shall pay to the Contractor as follows: a) $27.81 per hour until Dec 31, 2014 and $28.64 after January 1, 2015 plus applicable taxes which include, but not limited to, H.S.T. up to a maximum of 65 hours per month. b) reasonable expenses, as approved by the Town, incurred in the performance of the Services including mileage at the rate pursuant to set Town policy to be invoiced by the Contractor and paid in regular installments. Mileage shall only be paid to the Contractor for travel outside of the Town of Tillson burg in performance of the Services. Mileage shall not be paid for travel from Contractor's place of business or residence to the Town of Tillsonburg and vice versa; c) The Contractor covenants that it will provide invoices to the Town for payment for the Services and original receipts for approved out of pocket expenses (the "Invoices"). The Invoices will be submitted monthly. The Invoices shall include the amount of hours per month performing the Services, details of the Services performed and H.S.T. Invoices will be paid by the Town in arrears. Out of pocket expenses shall not be paid by the Town if prior approval of the Town was not obtained. C. The Services 4. The Contractor will be responsible for performing the tasks in the Project Workplan along with such tasks and goals all as attached to this Agreement as Schedule A, assisting the Town in completing all the requirements of the Funding, corresponding with the Government of Ontario pursuant to the Funding, assisting in the achieving the goals of the Project and any other duties that may be assigned, based on mutual CIA Project -Professional Services Contract-FinaLdocx 2/11 02-May-2014 agreement, by the Town to the Contractor pursuant to this Agreement (collectively the "Services"). 5. In performance of the Services the Contractor shall be discussing and consulting with the groups participating in the CIA, the Town, the Project Steering Committee and all other stakeholders (collectively the "Stakeholders"). The Contractor shall be expected to attend meetings of the Stakeholders. 6. The Contractor shall provide its own office, computer and support in performance of the Services at the Contractor's sole cost. The Contractor shall also provide its cell phone number to the Town, CIA and Stakeholders which the Contractor shall be available to be reached. The Town shall provide an email address to the Contractor. At no time shall the Town be liable for or reimburse the Contractor for the cost of the cell phone, long distance charges, roaming charges, internet and/or data charges. 7. The Contractor agrees to devote 60 to 65 hours per calendar month starting on the Commencement Date to perform the Services. If the Services require the Contractor to devote more than 60 to 65 hours per calendar month then the Contractor must first seek approval from the Director for such additional hours. Any hours or amounts on any Invoice that exceed more than 65 hours per month shall be rejected and not paid by the Town unless prior approval was obtained from the Director. 8. The Contractor shall report to the Director of Parks & Recreation (the "Director'') and the Contractor shall be under the oversight of the Project Steering Committee. 9. Any additional special projects that are outside the scope of this Agreement, Project and/or Funding shall be by written agreement between the Town and the Contractor and invoiced separately by the Contractor. 10. As part of the Services the Contractor will provide a comprehensive activity and results report monthly to the Director. 11. The Contractor covenants, warrants and represents that: a) It shall supply all materials, consumables and labour to perform the Services. At no time shall the Town or CIA be required to provide any material for the Contractor; b) At all times the Contractor shall act in a civil, responsible, courteous and conscientious manner; CIA Project -Professional Services Contract -FinaLdocx 3/11 02-May-2014 c) It shall and without delay report any and all issues with the Province of Ontario or any Stakeholders; d) It will follow all reasonable directives of the Director; e) It has the requisite skill and expertise to perform the Services; and, f) It will immediately become familiar with the Project, Stakeholders, Funding, CIA and Services. D. Termination 12. This Agreement shall terminate effective on the End Date except if the Parties have agreed to an Extension then, unless the Parties have agreed otherwise in writing, during the Extension period the Extension shall terminate upon two weeks written notice by either Party without the necessity for any further notice, pay in lieu of notice or severance pay under common law or statute. 13. The Parties agree that notwithstanding the Term either Party may terminate this Agreement upon 30 days written notice to the other Party for any reason (the "Termination Notice"). The Parties agree that the non- terminating Party shall not be entitled to damages of any kind whatsoever and howsoever arising due to the termination and the Parties shall be relieved of any further obligations pursuant to this Agreement upon expiry of the Termination Notice. Prior to expiry of the Termination Notice the Contractor shall continue to provide the Services and the Town shall continue to pay the Invoices. 14. The Contractor acknowledges that this Agreement may be terminated without notice and shall waive, release and hold harmless the Town from any obligations of the Town with respect to any provision of this Agreement including, but not limited to, completing the Term if the Contractor, in the sole opinion of the Town, causes damage or loss to the Town, any employee of the Town, property of the Town or reputation of the Town, unauthorized use or disclosure of the Confidential Information and/or any breach of any warranty, representation or covenant of the Contractor as contained in this Agreement. E. INSURANCE AND INDEMNITY 15. The Contractor covenants and agrees that it will carry public liability insurance while operating a motor vehicle in the performance of the CIA Project -Professional Services Contract -Final.docx 4/11 02-May-2014 Services and while driving to and from the Town with limits of no less than $2,000,000.00. 16. The Contractor acknowledges and agrees that it is performing the Services entirely at its own risk. The Contractor acknowledges and agrees: a. that the Town provides no warranty, covenant or representation as to the condition or safety of the Contractor while in the Town, at meetings of Stakeholders, on properties owned by the Town and/or Stakeholders; and, b. to indemnify the Town, CIA and Stakeholders (and their officers, directors, counselors, managers, employees, volunteers) for any and all liability, costs (including but not limited to legal costs), out of pocket expenses, losses of any kind whatsoever and howsoever arising and damage to property of the Town and/or Stakeholders and/or CIA arising in any way whether in tort, by statute, equity, law, negligence, contract, breach of warranty, intentional actions of the Contractor (or its employees, contractors, agents shareholders, officers and directors) due to or in performance of the Services or in any manner connected to this Agreement or connected to the Services in any way whatsoever and howsoever arising. 17. Throughout the Term the Contractor shall hold the Town, CIA and Stakeholders (including but not limited to its managers, officers, directors, counselors, employees and volunteers) harmless, indemnify the Town, CIA and Stakeholders and defend the Town, CIA and Stakeholders (with legal counsel reasonably acceptable to the Town) against any and all demands, proceedings, claims, liabilities, obligations, damages, awards, judgments, administrative fines, or other losses or expenses of any kind any of them may receive or incur as a result of the activities, actions, products, breach of any warranty or omissions of the Contractor (including, but not limited to its shareholders, officers, directors, employees, agents or subcontractors) including, but not limited to, negligence, breach of contract, tort, equity, law, intentional actions or breach of any statute or by-law except what is caused by the Town, Stakeholders and/or CIA. 18. The Contractor represents, covenants and warrants that at all times it: a. Shall be responsible for the actions and negligence of its employees, subcontractors, shareholders, officers and agents; b. Shall act in an appropriate manner in keeping with the terms of this Agreement; CIA Project -Professional Services Contract -Final.docx 5/11 02-May-2014 c. Shall ensure that its actions conform and adhere to all laws, statutes and regulations as applicable; and, d. It and its employees, officers, directors, subcontractors and agents have the skill and expertise to provide the Services. 19. The Contractor releases the Town, Stakeholders and CIA (including but not limited all of the managers, officers, directors, counselors, employees and volunteers) from any and all claims, actions, proceedings and demands of any kind whatsoever and howsoever arising whether in tort, contract, equity, law or by statue for any losses or damages of any kind whatsoever and howsoever arising including, but not limited to, damage to property or person caused or contributed by any third party, condition of any property, any injury suffered in performance of the Services and/or caused by any other contractor or persons on any property for any reason. The Contractor acknowledges that the Town has no responsibility for any actions of the users of the properties where the Services are performed and that the Contractor has accepted the risk that a user of a property or third party may intentionally or negligently commit an act which directly or indirectly causes damage, harm or loss to the Contractor or employee of the Contractor and the Contractor irrevocably and without reservation releases the Town, Stakeholders and CIA (including but not limited to its managers, officers, directors, counselors, employees and volunteers) from any and all liability. 20. Nothing contained herein shall create or be construed as creating any partnership, agency, joint venture, master/servant or employment between the Town, Stakeholders and/or CIA (and their officers, servants or agents) and the Contractor or any servant, agent or contractor of the Contractor. The Parties agree that at all times the Contractor is an independent contractor. At no time shall the Contractor be construed to be an employee of the Town, CIA and/or Stakeholders or hold itself out as an employee, agent or partner of the Town, CIA and/or Stakeholders. Nothing herein shall authorize the Town to contract for or to enter into binding arrangements on behalf of the Town, CIA and/or Stakeholders except with the express permission of the Director. The Contractor agrees that it will not hold itself out as a partner or agent of the Town or behave in a manner which suggests that it has apparent or actual authority to legally bind the Town. The Parties agree that the Contractor is free to enter into any other contract for services with any other person or corporation unless such other contract contravenes this Agreement. As the. Contractor is not an employee the Contractor acknowledges that the Town does not obtain WSIB coverage for it and its employees and there are no medical benefits of any kind. CIA Project -Professional Services Contract -Final.docx 6111 02-May-2014 21. The Town shall not be responsible for any infraction of, or non-compliance with any Federal, Provincial or Municipal laws, by-laws, regulation or rules relating to the Services and the Contractor shall and does hereby agree to indemnify and save harmless the Town in respect thereto with regard to the Services. F. CONFIDENTIAL INFORMATION 22. The Contractor acknowledges, covenants, understands and acknowledges that: (a) use of the Confidential Information is solely for the purposes of performing the Services; (b) it will take all reasonable precautions to protect the Confidential Information; (c) the Confidential Information, even though it may be shown to the Contractor, it is the exclusive property of the Town to be held by the Contractor in trust; and, (d) all Confidential Information shall be returned to the Town when requested or in any event upon the End Date or termination of this Agreement for any reason. 23. In this Agreement the term "Confidential Information" shall include, but not limited to, information emanating from the Town, its associates, affiliates, agents, contractors (including the Contractor), Stakeholders, CIA, Government of Ontario, suppliers, clients or customers, and/or conceived, developed and/or obtained by any means and includes, but not limited to, all data, documents, Funding, designs, information and intellectual property, whether oral, written or computerized, of the Town, Stakeholders and/or CIA that includes, but not limited to: contacts, marketing plans, business methods, production methods, processes, trade secrets, technical information, quotes, software, designs, engineering, suppliers, know-how, plans, specifications, identity of clients, financial records, identity of potential clients, financial statements, accounting journals and identity of suppliers. Confidential Information shall include documents, designs, quotes, information, contacts and intellectual property created by, produced by and/or obtained by the Contractor whether in or out of the course of performing the Services during the Term including any Extension and the Parties further agree that the creation of the documents, designs, information, contacts and intellectual property by the Contractor during the Term, or any Extension shall be de facto proof that it was created, produced and/or obtained in the course of this Agreement. CIA Project -Professional Services Colllract -Final.docx 711 I 02-May-2014 The Contractor acknowledges that all material it produces pursuant to this Agreement and the Services is the property of the Town and form part of the Confidential Information. 24. The Contractor agrees, covenants and warrants that it shall not, at any time, either during or subsequent to the Term: a. use, copy, reveal, report, publish, transfer or otherwise disclose to any person, corporation or other entity, any of the Confidential Information except in the course of this Agreement; and, b. communicate to any third party the Confidential Information except in accordance with this Agreement; 25. As the Town does not have an adequate remedy at law to protect the Confidential Information from the Contractor's unauthorized use of, knowledge of or receipt of the Confidential Information or to protect its interest in its Confidential Information, the Town shall be entitled to injunctive relief, in addition to such other remedies and relief that would, in the event of a breach of the provisions of this Agreement, be available to the Town. In the event of such a breach, in addition to any other remedies, the Town shall be entitled to receive from the Contractor payment of, or reimbursement for, its reasonable legal fees and disbursements incurred in enforcing any such provision. 26. Notwithstanding any other provision of this Agreement, the Contractor also agrees that the unauthorized disclosure of any Confidential Information will permit the Town to terminate this Agreement without notice or pay in lieu of notice. G. MISCELLANEOUS 27. Time shall be deemed to be the essence of this Agreement. 28. All communications in writing between the Parties shall be deemed to have been received by the addressee if delivered to the individual or to a member of the firm or to an officer of the Corporation for whom they are intended or if sent by post or by telegram addressed as follows: The Town at: The Town of Tillsonburg Parks and Recreation Services 45 Hardy Avenue Tillsonburg, ON, N4G 3W9 CIA Project -Professional Services Contract -Finaldocx 8/11 02-May-2014 The Contractor at: 134 Fairview Crescent Woodstock, ON N4S 6L 7 29. This Agreement and schedules attached hereto constitute the complete and final Agreement between the Parties regarding the subject matter hereof and supersedes all previous discussions, representations or undertakings, whether oral or written. The Parties agree that there are no terms, express or implied, representations, verbal, understandings or commitments unless contained in this Agreement. No amendment or waiver of this Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision nor shall any such waiver constitute a continuing waiver unless otherwise expressly provided. 30. Any terms in this Agreement which are masculine shall be interpreted as either masculine or feminine and vice versa and words importing persons shall include firms and corporations and vice versa. For convenience, headings have been inserted into this agreement and shall not be used in any manner to interpret this agreement. For the purposes of interpretation, any words in this agreement that are singular shall be interpreted as if they include the plural and any words in this agreement that are plural shall be interpreted as if they include the singular. The Parties agree that the recitals form a part of the agreement. All schedules to this agreement shall form part of the agreement. The words "Party" and "Parties" shall mean the Town and/or the Contractor as the context permits. 31. Should any provision of this agreement require judicial interpretation or arbitration, it is agreed that the court or arbitrator interpreting or construing the same shall not apply a presumption that the terms thereof shall be more strictly construed against one party by reason of the rule of construction that a document is to be construed more strictly against the party who itself or through its agent prepared the same, it be agreed that both parties have participated in the preparation hereof. 32. In the event that any provisions contained in this Agreement shall be declared invalid, illegal or unenforceable by a court or other lawful authority of competent jurisdiction, this Agreement shall continue in force with respect to the enforceable provisions and all rights and remedies accrued under the enforceable provisions shall survive any such declaration, and any non-enforceable provision shall to the extent CIA Project-Professional Services Contract-Final.doc." 9/11 02-May-2014 permitted by law be replaced by a provision which, being valid, comes closest to the intention underlying the invalid, illegal and unenforceable provision. 33. Neither this Agreement nor any rights or obligations under this Agreement shall be assignable by any Party without the prior written consent of the other Parties. Subject to that condition, this Agreement shall enure to the benefit of and be binding upon the Parties and their respective heirs, executors, administrators, successors (including any successor by reason of amalgamation of any Party) and permitted assigns. IN WITNESS WHEREOF the parties hereto have executed this agreement the day and year first above written, signing officers in that behalf. Mary-Anne Murphy Poc~,~?-Mary-nn rp y Title: THE CORPORATION 0 THE TOWN OF TILLSONBURG Per: and David Beres Mayor Per:~· Donna Wilson Clerk We have authority to bind the Corporation. CIA Project -Professional Services Contract -Finaldocx 10/11 02-May-20!4