2023-027 Schedule A UNSIGNEDBy-Law 2023-027 Schedule A Town of Tillsonburg Consultant Agreement
TOWN OF TILLSONBURG CONSULTANT AGREEMENT THIS AGREEMENT made the day of , 2023. BETWEEN: NORTHLANDS ADVENTURE PROPERTIES INC.
(hereinafter called the “Consultant”) OF THE FIRST PART
- and - THE CORPORATION OF THE TOWN OF TILLSONBURG (hereinafter called the “Town”)
OF THE SECOND PART
WHEREAS the Town requested provision of consulting services as the Interim Airport Management Firm hereto;
AND WHEREAS the Consultant submitted an outline of their qualifications and interest dated February 6, 2023; AND WHEREAS the Town wishes to retain the Consultant to deliver the Services as set out in
this Agreement;
AND WHEREAS the Consultant has represented to the Town that it has the skills and ability to deliver the Services to the Town in an effective and efficient manner;
NOW THEREFORE in consideration of the mutual covenants herein contained and the provision of other good and valuable consideration (the receipt and adequacy of which is acknowledged) the Parties hereto agree as follows: 1 Definitions
1.1 “Agreement” means this agreement to provide the Services to the Town and includes any amendments, supplements, schedules, exhibits or appendices attached, referencing this agreement, or expressly made a part hereof.
By-Law 2023-027 Schedule A Town of Tillsonburg Consultant Agreement
1.2 “Confidential Information” means any and all material and information whatsoever
of the Town and/or representatives of the Town which has or will come into the possession or knowledge of the Consultant or any Consultant Personnel in connection with or as a result of the relationship of this Agreement including, without limitation, information concerning the Town’s past, present and future clients, suppliers, and
business. For the purposes of this definition, “information” and “material” includes know-how, data, patents, copyrights, trade secrets, processes, techniques, programs, designs, formulae, marketing, advertising, financial, commercial, sales, or programming materials, written materials, agreements, draft agreements, requests for proposals, compositions, drawings, diagrams, computer programs, studies, work-in-progress,
visual demonstrations, ideas, concepts, and other data, in oral, written, graphic,
electronic, or any other form or medium whatsoever. Notwithstanding the foregoing, Confidential Information does not include the following information:
(a) information which is in the public domain when it is received by or becomes known to the Consultant or Consultant Personnel or which subsequently enters
the public domain through no fault of the Consultant or Consultant Personnel (but only after it enters the public domain); (b) information which is already known to or in the possession of the Consultant or Consultant Personnel at the time of its disclosure to the Consultant or Consultant
Personnel by the Town and/or representatives of the Town and is not the subject
of an obligation of confidence of any kind;
(c) information which is received by the Consultant or Consultant Personnel without an obligation of confidence of any kind from any person (other than the Town and/or representatives of the Town); and
(d) information which is disclosed by the Consultant or Consultant Personnel pursuant to a requirement of law or of a governmental agency or by operation of law, provided that the Consultant or Consultant Personnel has disclosed only that part of the Confidential Information which it was required to disclose and has notified the Town prior to such disclosure in a timely fashion in order to permit
the Town to attempt to prevent or restrict such disclosure should it so elect.
For greater clarity, Confidential Information shall include materials and information of a third party in the possession of the Town and/or representatives of the Town.
1.3 “Consultant Personnel” means individuals employed, retained by or acting on behalf of the Consultant or a permitted subconsultant of the Consultant.
1.4 “Project Schedule” means the intended start and finish dates for the Services as proposed by the Consultant and approved by the Town and as otherwise provided in the Proposal and this Agreement.
By-Law 2023-027 Schedule A Town of Tillsonburg Consultant Agreement
1.5 “Proposal” means the outline submitted to the Town by the Consultant.
1.6 “Services” means the services to be furnished by the Consultant to the Town pursuant to this Agreement, as specified in the scope of work.
2 Services of the Consultant
2.1 The Consultant shall provide to the Town the Services in accordance with the terms and conditions of this Agreement and agrees to undertake the scope of work described in
agreement.
2.2 The scope of work may be amended or otherwise modified by agreement in writing by the Town and the Consultant and attached to this Agreement and, thereafter, the Services shall be deemed to include the services described in such amended scope of work and/or consulting services.
3 Level of Services
3.1 Unless otherwise expressly specified in this Agreement, the Consultant agrees to supply
at its sole cost and expense all staff, equipment, accommodations, disbursements and technical assistance necessary to perform the Services to be furnished under this Agreement and assume all overhead expenses in connection therewith, to the reasonable satisfaction of the Town.
4 Commencement and Prosecution of Work
4.1 The Consultant shall commence work pursuant to this Agreement when directed by the Town. The Consultant shall proceed with due dispatch to ensure that its obligations are completed as quickly as reasonably possible, but in any event to be completed before the completion date set out in this agreement. The Town shall give due consideration to
all plans, drawings, reports, tenders, proposals, and other information provided by the Consultant and shall make any decisions which it is required to make in connection therewith within a reasonable time so as not to delay the work of the Consultant.
4.2 That in case all the work called for under the Contract is not finished or completed
within the date of completion specified, damage will be sustained by the Corporation,
and that it is and will be impracticable and extremely difficult to ascertain and determine the actual damage which the Corporation will sustain in the event of and by reason of such delay and the parties thereto agree that the Contractor will pay to the Corporation Liquidated Damages for each and every calendar days delay in finishing the work
beyond the date of completion specified as follows:
A sum of $200.00 per calendar day for each and every calendar day delay in completing
By-Law 2023-027 Schedule A Town of Tillsonburg Consultant Agreement the work beyond the specified date of completion.
It is agreed that this amount is an estimate of actual damage to the Corporation which
will accrue during the period in excess of the prescribed date of completion.
The Corporation may deduct any amount under this paragraph from any monies that may be due or payable to the Contractor on any account whatsoever. The Liquidated Damages payable under this paragraph are in addition to and without prejudice to any
other remedy, action or other alternative that may be available to the Corporation.
4.3 The Town shall be entitled to terminate this Agreement at any time without cause, whether or not the Consultant has breached or failed to perform any of its obligations to the Town under this Agreement, and in the event of such termination, the remuneration payable to the Consultant shall be determined by calculating the proportion of the work completed and applying that proportion to the fees payable hereunder for the Services.
5 Total Contract Price 5.1 In consideration of the Services provided by the Consultant, the Town agrees to pay the Consultant the sum of One Hundred and Twenty thousand dollars ($120,000.00). The
sum of payment includes all fees, disbursements and applicable taxes, except for H.S.T.
which (if applicable) shall be included in each invoice submitted to the Town and the Town agrees to pay such applicable H.S.T. to the Consultant.
5.2 In each invoice submitted to the Town, the Consultant shall include all applicable Taxes. The Consultant shall remit all applicable Taxes to the applicable taxing authorities as required by law. The Consultant hereby covenants and agrees to indemnify the Town
and save it harmless from and against all liabilities and claims whatsoever against the Town, including, without limitation, fines, penalties and interest thereon, for or by reason of or in any way arising out of its failure to deduct, withhold or contribute any amount in respect of its payments to the Consultant pursuant to this Agreement. Such
liabilities and claims shall include, without limiting the generality of the foregoing, federal or provincial income taxes, federal or provincial pension plan contributions, unemployment insurance premiums, workers’ compensation premiums and contributions under any federal or provincial social insurance or income security programs.
5.3 Notwithstanding subsection 5.1 above, the parties may agree on the performance of
extra work by the Consultant. Any such extra work must have been approved in writing, in advance, by the Town and, failing such approval; no payment shall be made in respect of same.
6 Payment
By-Law 2023-027 Schedule A Town of Tillsonburg Consultant Agreement 6.1 Payments shall be made to the Consultant by the Town, to the limits established in
Section 5 of this Agreement, in accordance with invoices from the Consultant detailing
charges owing and based on the completion of tasks outlined in the Consultant’s Proposal and Project Schedule. Valid invoices submitted to the Town with respect to Services shall, subject to the terms and conditions of this Agreement be paid by the Town within 30 days of receipt by the Town of the applicable invoice.
6.2 Progress payments for the Services performed by the Consultant shall be made only where expressly agreed in writing by the Town. A claim for a progress payment made by the Consultant shall not include any aspect of the Services not yet fully and properly performed.
6.3 If any Services under the Agreement are included by the Consultant in its progress
claims as partially or fully completed, but are not completed in accordance with the
Agreement or are not otherwise completed to the Town’s satisfaction, the Town may withhold from payment the total amount payable, or a part thereof, for those Services until they are completed or corrected to the full satisfaction of the Town.
6.4 Where a contingency allowance is provided for in the Agreement, the Consultant shall
not be entitled to payment of the whole or any part of that amount, except to the extent that it can be shown that extra or additional Services have been carried out by the Consultant beyond that contemplated within the Agreement, and those extra Services have been approved in writing, in advance, by the Town’s Project Manager or contract representative as set out in this Agreement.
7 Term
7.1 This Agreement shall commence on the date set forth above and, subject to earlier termination as provided for in this Agreement, continue in effect until the completion date identified as identified in the “Term”.
7.2 The Town, with the approval of Town Council for the Management Services as outlined in an extension agreement as well as budget approval for the extended costs as quoted by the Consultant, will have the option to extend this Agreement for satisfactory completion of the Services herein provided by the Consultant and/or for additional work that may be required. The Town reserves the right to award any follow-on work to the
Consultant without necessitating a separate procurement process.
7.3 The provisions of and the rights, obligations and liabilities of the parties under Sections 1, 5, 6, 13, 14, 16 – 31 of this Agreement shall survive the termination of this Agreement and shall continue in full force and effect thereafter.
8 Insurance Requirements 8.1 Throughout the Term of the Agreement, the Consultant covenants and agrees to purchase, maintain and keep in full force and effect a policy or policies of:
By-Law 2023-027 Schedule A Town of Tillsonburg Consultant Agreement 8.1.1 Comprehensive General Liability Insurance, applying to all operations of the
Consultant subject to limits of not less than five million dollars ($5,000,000) per
occurrence which shall include coverage for personal injury, including death, broad form property damage, and contingent employer’s liability. The Town reserves the right from time to time to request greater amounts or other types of policies appropriate to the work as the Town may reasonably require and the Consultant
agrees to comply with all such reasonable requests made by the Town in this regard. In addition, any subconsultants must be approved by the Town before any work is commenced and the following insurance and indemnification requirements and clauses apply to said subconsultants. The insurance policy shall:
a. include as additional insured’s “The Corporation of the Town of
Tillsonburg”, “Tillonsburg Hydro Inc.” and the “County of Oxford”;
b. contain a cross-liability clause, severability of interests clause endorsement;
c. contain a clause including Contractual Liability coverage arising out of the Agreement;
8.1.2 Automobile Liability Insurance, that complies with all requirements of the
current legislation of the Province of Ontario, having an inclusive limit of liability of not less than two million dollars ($2,000,000) per occurrence or such greater amount as the Town may from time to time reasonably request, in respect of the use or operation of all licensed vehicles owned or leased by the Consultant for the provisions of Services. The policy must provide coverage for personal injury,
including death or property damage arising out of the ownership, use or operation of all owned and/or leased automobiles; 8.1.3 Non-Owned Automobile Liability Insurance, in standard form having an
inclusive limit of not less than two million dollars ($2,000,000) per occurrence or
such greater amount as the Town may from time to time reasonably request, in respect of the use or operation of vehicles not owned by the Consultant for the provisions of Services;
8.1.4 Professional Liability Insurance (Errors and Omissions), is required and will have an inclusive limit of not less than two million dollars ($2,000,000) or, alternatively, the Consultant shall purchase and maintain in force for the duration of the project, single project Professional Errors and Omissions Liability Insurance
with limits dedicated to the Services and having an inclusive limit of not less than
two million dollars ($2,000,000) per claim. The Consultant shall ensure any person
providing professional service in connection with this Agreement have and maintain the required Professional Liability Insurance as described herein. 8.2 Proof of insurance will be submitted by way of an executed Certificate of Insurance in
By-Law 2023-027 Schedule A Town of Tillsonburg Consultant Agreement a form satisfactory to the Town each year and at least ten (10) days prior to renewal of
policy. All requested lines of coverage to be shown on the Certificate of Insurance. The
Consultant shall neither perform nor be remunerated for any Services under this Agreement unless and until said insurance certificate has been provided and approved by the Town insurer.
8.3 All such insurance policies shall be maintained in force for the Term and provide that it
is not cancellable or changeable unless prior written notice by mail or facsimile transmission has been received by the Town from the insurer(s) not less than thirty (30) days prior to the cancellation date or the date any changes are to take effect with respect to the policy/policies.
8.4 It shall be the sole responsibility of the Consultant to determine what additional
insurance coverage, if any, are necessary and advisable for its own protection and/or to
fulfill its obligation under this Agreement. Any such additional insurance shall be maintained and provided at the sole expense of the Consultant.
8.5 The Consultant and the Town agree to immediately notify the other party of an occurrence, incident, or event which may reasonably be expected to expose any of the
parties hereto to liability of any kind in relation to the Services and/or this Agreement.
8.6 The issuance of such policies of insurance shall not be construed as relieving the Consultant from responsibility for other or larger claims, if any, for which is may be held responsible.
9 Indemnification
9.1 The Consultant shall indemnify and save harmless the Town, its employees, agents, successors, members and assigns (collectively the “Indemnified Parties”), from and against all actions, causes of action, suits, claims and demands whatsoever which may be brought against or made upon any one or more of the Indemnified Parties and against
any and all losses, liability, judgments, claims, costs, demands or expenses which any one or more of the Indemnified Parties may sustain, suffer, or be put to resulting directly or indirectly from or as a consequence of or in connection with the Services provided by the Consultant, including but not limited to those arising out of the Consultant’s failure to exercise reasonable care, skill or diligence in the performance or rendering of
any work or service required hereunder to be performed or rendered by the Consultant.
9.2 Without limiting the generality of the foregoing, the Consultant hereby agrees to well and truly save, keep harmless and fully indemnify the Indemnified Parties from and against all actions, causes of action, suits, claims and demands whatsoever which may be brought against or made upon any one or more of the Indemnified Parties, for the
infringement of or use of any intellectual property rights including any copyright or patent arising out of the reproduction or use in any manner of any plans, designs, drawings, specifications, information, negatives, data, material, sketches, notes, documents, memoranda, or computer software furnished by the Consultant in the
By-Law 2023-027 Schedule A Town of Tillsonburg Consultant Agreement performance of this Agreement.
9.3 All goods and services provided to the Town pursuant to this Agreement, including
information, software and other intellectual property, shall be fully warranted against defects in accuracy, material and workmanship (as applicable) for a warranty period which commences immediately upon the supply and delivery of the goods and services, and which terminates one (1) year following the total completion of this Agreement.
10 WSIB 10.1 The Consultant prior to commencing the Services,
(a) shall submit to the Town an original Clearance Certificate from the Ontario Workplace Safety and Insurance Board and shall provide additional certificates with respect to such coverage every ninety (90) days, or as often as the Town
deems necessary during the Term of the Agreement to ensure continued good standing with the Workplace Safety and Insurance Board; or (b) furnish proof in a form satisfactory to the Town from the Workplace Safety and
Insurance Board that the Consultant does not require Workplace Safety and Insurance Board insurance, but in such a case if the Consultant changes its status during the term of the Agreement so that such coverage is required, the Consultant shall immediately provide the Town with the certificate required under subsection 10.1 (a).
10.2 Where a substantial portion of the work to be done under the Agreement is to be carried out by a subconsultant, the Town may require the Consultant to furnish the same evidence as provided under subsection 10.1.
11 Consultant Standard of Care 11.1 During the entire Term of this Agreement, the Consultant shall devote such time and attention to the performance of the Services as is necessary for the proper and effective exercise of its obligations under this Agreement. In performing the Services under this Agreement and in otherwise exercising its powers and discharging its obligations and
duties hereunder, the Consultant shall and shall ensure that all Consultant Personnel;
(a) act diligently, honestly and in good faith and in the best interests of the Town;
(b) exercise the degree of care, skill and diligence that fully experience, careful and
prudent consultants employing best practices would exercise in comparable circumstances;
(c) to the best of its ability make every effort to promote the interests and reputation of the Town; and
By-Law 2023-027 Schedule A Town of Tillsonburg Consultant Agreement (d) to the best of its ability assist the Town in achieving its objectives and goals.
11.2 The Consultant shall act ethically and fairly in all of its dealings with the Town and all elected or appointed officials, officers, employees and independent contractors of the Town, and co-operate with them in respect of the discharge of their duties to the Town.
11.3 The Consultant shall not act in any case where there may be any conflict of interest
between it (or any of its directors, officers, employees, subconsultants or Consultant Personnel) and the Town. The Consultant shall notify the Town of and fully disclose to the Town, in writing and immediately upon same becoming known to the Consultant, any potential or actual conflict of interest that may arise or has arisen prior to the execution of this Agreement or during the performance of its duties under the
Agreement.
12 Assignment, Subconsulting and Consultant Personnel 12.1 The Consultant shall not sell, assign, convey, transfer or encumber in any manner this Agreement, any part of this Agreement or any of its rights or obligations hereunder
without the prior written consent of the Town. Any such attempted sale, assignment, conveyance or transfer in violation hereof by the Consultant shall be void and of not force and effect.
12.2 The Consultant is the prime contractor under this Agreement and, as such, no subconsulting by the Consultant shall relieve the Consultant of any responsibility for the
full performance of all obligations of the Consultant under this Agreement.
Notwithstanding the approval of any subconsultants by the Town, the Consultant shall assume full responsibility for the performance of the Services in accordance with the terms of this Agreement, including any activities, works, and/or Services provided by subconsultants and any acts and/or omissions of subconsultants.
12.3 The Consultant shall provide Consultant Personnel that possess the training and qualifications required to deliver the Services.
13 Confidential Information 13.1 Upon completion or expiration or earlier termination of this Agreement, whichever shall
first occur, the Consultant shall return to the Town all written or descriptive matter,
including but not limited to drawings, descriptions, or other papers, documents or any other material, which contains any Confidential Information which is then in the possession or control of the Consultant or any Consultant Personnel and shall remove all digital representations thereof in any form from all electronic storage media in its or
their possession or control, and shall certify in writing to the Town that the Consultant has fully complied with this subsection. Except as expressly provided in this paragraph, no Confidential Information shall be disclosed without the approval in writing of the Town, and:
By-Law 2023-027 Schedule A Town of Tillsonburg Consultant Agreement (a) the Consultant shall hold all Confidential Information in trust and strictest
confidence for the Town and shall not disclose any such Confidential
Information, by publication or other means, to any person, company or other government agency nor use same for any other project other than for the benefit of the Town as may be authorized by the Town in writing;
(b) any request for such approval by the Town shall specifically state the benefit to the Town of disclosure of Confidential Information; (c) any use of the Confidential Information shall be limited to the express purposes as set out in the approval of the Town;
(d) the Consultant shall not, at any time during or after the Term of this Agreement, use any Confidential Information for the benefit of anyone other than the Town; (e) the Consultant shall not make any copies or partial copies of the Confidential
Information except as required for its permitted use as described herein or as otherwise authorized in writing by the Town. The Consultant shall take all reasonable steps to protect the Confidential Information to ensure that Confidential Information is not disclosed, distributed or used in violation of the provisions of this Agreement; and,
(f) the Consultant shall ensure that all Consultant Personnel having access to the Confidential Information comply with this Section of the Agreement. 13.2 The Consultant acknowledges that disclosure of Confidential Information may cause
serious and irreparable harm to the Town which cannot be adequately compensated for in damages and accordingly agrees that the Town shall be entitled to obtain injunctive relief, in addition to any other appropriate remedy, to prevent such disclosure.
14 Right of Ownership and Use 14.1 Upon completion or other termination of this Agreement, all information, negatives
from original photography, computer software, data, material, sketches, plans, designs, notes, documents, memoranda, specifications or other paper writing gathered, assembled, or prepared by the Consultant and/or Consultant Personnel (hereinafter collectively referred to as "the material") shall become the sole property of the Town
including copyright with respect to all such material. The Consultant shall execute any documents required to give effect to the foregoing.
14.2 The Consultant waives in whole and in part any and all moral rights arising under the Copyright Act in the material as against the Town and anyone claiming rights of any such nature from or through the Town. Further, the Consultant represents and warrants
that its employees, servants, subconsultants and agents (Consultant Personnel) have
waived or shall waive in whole and in part any and all moral rights arising under the
By-Law 2023-027 Schedule A Town of Tillsonburg Consultant Agreement Copyright Act in the material as against all parties, including the Consultant and the
Town, and anyone claiming rights of any such nature from or through the Town.
14.3 The Consultant acknowledges and agrees that, as a consequence of the assignment and waiver as herein stated, all rights which may subsist in the material shall be and remain the sole and exclusive property of the Town and the material shall be treated as Confidential Information.
15 Accessibility for Ontarians with Disabilities Act, 2002 and Barrier Free Design Guidelines 15.1 The Town is committed to providing equal treatment to people with disabilities with respect to the use and benefit of Town services, programs, and goods in a manner that
respects their dignity and that is equitable in relation to the broader public.
15.2 Effective 1 January 2010, third party contractors who deal with the public or other third parties on behalf of the Town, as well as vendors who participate in developing Town policies, practices or procedures governing the provision of goods and services to members of the public or other third parties, must conform with the Accessibility
Standards for Customer Service, O. Reg. 429/07 (Appendix A) (“Regulation”), under The Accessibility for Ontarians with Disabilities Act, 2005 (AODA).
15.3 Pursuant to Section 6 of the Regulation, the Consultant shall ensure that all of its employees, agents, volunteers, or others for whom it is at law responsible, receive training about the provision of the goods and services contemplated herein to persons
with disabilities. Such training shall be provided in accordance with Section 6 of the
Regulation and shall include, without limitation, a review of the purposes of the Act and the requirements of the Regulation, as well as instruction regarding all matters set out in Section 6 of the Regulation. Where requested by the Town, the Consultant shall provide written proof that employees working with Town staff and/or public have been
trained as required under the act as well as any documentation regarding training policies, practices and procedures.
16 Consultants Default and Town’s Remedies 16.1 The provisions of this section are in addition to any other rights, privileges and remedies
to which the Town is entitled by Law, in equity or otherwise in the Agreement.
16.2 The following shall constitute, without limitation, acts or events of default (“Default”) by the Consultant:
(a) where the Consultant fails or neglects to commence or to proceed with the provision of Services diligently and at a rate of progress that in the opinion of the
Town will ensure entire completion within the time provided for in the Agreement;
By-Law 2023-027 Schedule A Town of Tillsonburg Consultant Agreement (b) where the Town reasonably determines that the Consultant has abandoned its
duties with respect to the Services or failed to observe and perform any of the
provisions of the Agreement, the determination of which shall be at the sole discretion of the Town; (c) where the Consultant fails to comply with and maintain in good standing any
insurance policies, professional certificates, permits, licences or approvals required by the Agreement or commits any acts or omissions that jeopardizes or may jeopardize these policies, permits, licences or approvals; (d) where the Consultant fails to comply with or observe or perform, or breaches or
violates, any provision, term, covenant, warranty, condition, responsibility and/or
obligation of the Agreement; (e) where the Consultant fails to comply with any laws, statutes, rules or regulations;
(f) where the Consultant fails to comply with any instruction or direction of the Town; (g) where the Consultant defaults in the completion of the Services within the time limit under the Agreement or within a Town-extended time limit;
(h) where the Consultant makes an assignment for the benefit of creditors or becomes bankrupt or insolvent, or makes a proposal to its creditors. 16.3 Without restricting, limiting, precluding or otherwise prejudicing any other right,
privilege or remedy of the Town provided in this Agreement or by law or in equity, in the event that the Consultant has committed an act of Default or an event of Default has occurred, the Town may provide written notice (“Default Notice”) to the Consultant to the effect that if the Consultant does not completely remedy the Default to the satisfaction of the Town within three (3) business days of delivery of the Default Notice,
or such other period of time as may be specifically provided for under the Agreement
or otherwise granted by the Town in writing, in its absolute discretion, then the Town may terminate the Agreement and/or the Services of the Consultant immediately.
16.4 If the Default is not completely remedied to the satisfaction of the Town in accordance with subsection 16.3, the Town may terminate the Agreement immediately and enforce
any performance bond, letter of credit or other performance security provided by the Consultant (where applicable).
16.5 A waiver of a Default shall not extend to, or be taken in any manner whatsoever to affect the rights of the Town with respect to any subsequent default, whether similar or not.
16.6 The remedies provided in this Agreement are in addition to all other legal, equitable or
statutory remedies to which the Town is otherwise entitled, as well as any other
By-Law 2023-027 Schedule A Town of Tillsonburg Consultant Agreement remedies stipulated in the Agreement, and the taking of any one remedy shall not
preclude the taking of any other remedy.
16.7 If the Town terminates the Agreement as a result of an act or event of Default, in addition to any other rights, privileges and remedies it is entitled to, the Town may:
(a) take possession of all of the work in progress, supplies, goods and materials, and complete the Services by whatever means the Town may deem appropriate under
the circumstances;
(b) withhold any further payments to the Consultant until the completion of the Services and the expiry of all obligations; and
(c) recover from the Consultant loss, damage and expense incurred by the Town or
may be incurred by the Town by reason of the Consultant’s default (which may be deducted from any monies due or becoming due to the Consultant, with any balance remaining to be paid by the Consultant to the Town).
16.8 Unless the Town otherwise agrees in writing and without limiting any other provision of this section, the failure, refusal or neglect by the Consultant to deliver the Services in a diligent manner within the time specified or to promptly replace, remedy or correct the Consultant’s performance and/or Services as required pursuant to the Agreement shall be deemed to constitute an authority for the Town to purchase and/or replace the
Services in question on the open market. The Consultant shall forthwith reimburse the
Town for all of its extra costs and expenses incurred to purchase and/or replace such Services, and the Town’s internal costs and any delay costs.
17 Compliance with Laws 17.1 The Consultant shall comply with all Federal, Provincial and Municipal laws, statutes, rules and regulations which are in any way related to or connected with the conduct of the business of the Consultant, the Services of this Agreement including, but not limited to, the Occupational Health and Safety Act, or any successor legislation, as applicable, and to provide to the Town, upon request, reports confirming such compliance.
17.2 The Consultant shall comply with the Human Rights Code and refrain from acts of
discrimination and harassment in the same manner as would apply to employees of the Town pursuant to applicable laws and its Code of Conduct.
17.3 The Consultant shall at all times comply with all corporate rules, guidelines and policies of the Town.
18 Governing Law 18.1 This Agreement shall be governed by and construed in accordance with the laws of the
Province of Ontario and the federal laws of Canada, as applicable to the matters herein.
By-Law 2023-027 Schedule A Town of Tillsonburg Consultant Agreement Any action or other legal proceeding arising under or with respect to the Agreement will
be determined by a court of (or other forum) of competent jurisdiction within the
Province of Ontario and all courts competent to hear appeals from them.
19 Agreement Non Exclusive
19.1 Unless otherwise expressly provided in the Request For Proposals attached hereto as or any Addendum thereto, no Agreement shall be deemed to confer upon the Consultant an exclusive right to supply those Services to the Town related to this Agreement or otherwise.
20 Notification 20.1 Any demand, notice, direction or other communication required, or permitted to be given under this Agreement shall be in writing and shall be addressed to the respective parties as follows:
The Corporation of the Town of Tillsonburg 200 Broadway St. Unit 204 Tillsonburg, Ontario N4G 5A7
Attention: Director of Operations
Northland Adventure Properties Inc. O/A Northland Property Services. 17 Ann Street Ingersoll, ON N5C 2E9
Attention: Don Huras, President and Owner 20.2 Either party may change its address by notice given in accordance with this section. Notices may be delivered personally, in which case they shall be effective immediately,
or through regular mail, in which case they shall be effective on the fifth (5th) day
following mailing.
21 Interpretation
21.1 Words importing the masculine gender shall include the feminine and neuter, and the
singular shall include the plural where the meaning or context so requires and the rest of the sentence shall be construed as if the grammatical and terminological changes thereby rendered necessary had been made.
21.2 All captions, titles, and paragraph headings in this Agreement are inserted for
convenience and ease of reference only and do not define, limit or enlarge the scope, meaning or intent of any provisions of this Agreement.
22 Complete Agreement
By-Law 2023-027 Schedule A Town of Tillsonburg Consultant Agreement 22.1 This Agreement, including the Schedules attached hereto, constitutes the complete and
exclusive statement of the agreement between the parties hereto and supersedes and replaces all previous communications, agreements, promises, proposals, representations, understandings and negotiations, whether written or oral, between the parties relating to the subject matter of this Agreement.
23 Relationship of the Parties 23.1 The Consultant shall perform the Services as an independent contractor and nothing in this Agreement shall be construed to create or imply a relationship of partners, joint ventures, principal/agent, or employer/employee between the Consultant and the Town.
The Consultant shall have no power or authority to bind the Town or to assume or create
any obligation or responsibility, express or implied, of any nature or any kind, in law or in equity on the Town’s behalf. The Consultant shall not hold itself out to any third party as a joint venture, partner, agent, employee or servant of the Town, and nothing contained in this Agreement shall operate or be construed so as to create any such
relationship between the Consultant and the Town. The Consultant shall be solely responsible for the payment of compensation, workers’ compensation, disability benefits, employment insurance and all other similar payments and benefits and for withholding income taxes or other deductions with respect to all individuals employed or, if permitted by this Agreement, retained by the Consultant to provide the Services.
24 Successors and Assigns
24.1 This Agreement shall ensure to the benefit of and be binding on the parties hereto, and their respective heirs, successors and permitted assigns. Provided, however, that the Consultant shall not assign this Agreement nor any interest herein without the prior
written consent of the Town, and for the purposes of this Agreement, assignment shall include any transfer in the majority ownership or controlling interest in the Consultant, whether through the sale of shares, direct acquisition of assets or otherwise.
25 Changes to Agreement in Writing 25.1 Any variation, amendment or addition of or to this Agreement shall be in writing and
be signed by the Consultant and the Town pursuant to and in accordance with authority delegated by Council for the Town, and shall be binding upon the Consultant and the Town as fully and to the same extent as if set out herein.
26 Representations and Warranties 26.1 The Consultant represents and warrants as follows to the Town and acknowledges and confirms that the Town is relying on such representations and warranties:
(a) the Consultant is a legal entity established under the laws of its jurisdiction and has all the necessary power and authority to execute and deliver this Agreement
By-Law 2023-027 Schedule A Town of Tillsonburg Consultant Agreement and to perform its obligations under this Agreement;
(b) the Services will be performed in an efficient and professional manner by duly
competent and trained Consultant Personnel that have the requisite experience to provide the required services;
(c) The Consultant is not now a party to any agreement or business relationship which is in conflict with this Agreement, and the Consultant shall not enter into
any agreements or incur any obligations during the term of this Agreement or
after which may be in conflict with this Agreement; and
(d) The Consultant is not a “non-resident person” for the purposes of the Income Tax Act (Canada). 27 Severability 27.1 In the event that one or more of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, no other provisions contained in this Agreement shall be affected or impaired thereby.
28 Order of Precedence
28.1 In the event of any conflict between any of the provisions of the Proposal and the body of this Agreement, the provisions in the body of this Agreement shall govern.
29 Counterparts 29.1 This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall be deemed to constitute one and the same instrument. The parties hereto may execute the counterparts in either
original, faxed form or other electronic communication and the parties adopt any signatures received by a receiving fax machine or other electronic communication as original signatures of the parties but any party providing its signature by fax or other electronic communication shall promptly forward to the other party an original of the signed copy of this Agreement that was faxed or sent by other electronic
communication.
By-Law 2023-027 Schedule A Town of Tillsonburg Consultant Agreement
By-Law 2023-027 Schedule A Town of Tillsonburg Consultant Agreement
IN WITNESS WHEREOF the parties hereto have hereunto affixed their corporate seals attested
to by the hands of their respective proper signing offices in that behalf duly authorized. SIGNED, SEALED AND DELIVERED as of the date first above written
) CONSULTANT LEGAL NAME
) ) ) ____________________________________
) Don Huras, President
) I/We have authority to bind the Consultant
)
)
) THE CORPORATION OF THE TOWN OF TILLSONBURG
)
)
) ____________________________________ ) CAO: Kyle Pratt, MPA, CMM III, CHRL, CMO ) ) ) ____________________________________ ) DIRECTOR OF OPERATIONS: Jonathon Graham, MPA, LET