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HomeMy WebLinkAbout22 087 Security Services (Fairmount Holdings Inc.) (2022) Agreement By-lawTHE CORPORATION OF THE MUNICIPALITY OF KINCARDINE BY-LAW NO. 2022 - 087 BEING A BY-LAW TO AUTHORIZE THE SIGNING OF AN AGREEMENT WITH FAIRMOUNT HOLDINGS INC. TO PROVIDE SECURITY SERVICES WHEREAS Sections 8 (1) and 9 of the said Municipal Act, provide that the powers of a municipality under this or any other Act shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality’s ability to respond to municipal issues and a municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act; AND WHEREAS the Alcohol Risk Management Policy (GG. 1.6) has requirements for licensed security to be present at events held at municipal facilities; AND WHEREAS the Municipality deems it advisable to enter into an agreement with Fairmount Holdings Inc. to provide security services; NOW THEREFORE the Council of The Corporation of the Municipality of Kincardine ENACTS as follows: 1. That The Corporation of the Municipality of Kincardine enter into an agreement with Fairmount Holdings Inc. to provide security services, attached hereto as Schedule ‘A’. 2. That the Mayor and Chief Administrative Officer be hereby authorized to execute, on behalf of The Corporation of the Municipality of Kincardine, the Agreement with Fairmount Holdings Inc. attached hereto as Schedule “A” and forming part of this By-law. 3. This by-law shall come into full force and effect upon its final passage. 4. This by-law may be cited as the “Security Services (Fairmount Holdings Inc.) (2022) Agreement By-law”. READ a FIRST and SECOND TIME this 2nd day of May, 2022. READ a THIRD TIME and FINALLY PASSED this 2nd day of May, 2022. Mayor Clerk GENERAL SERVICE AGREEMENT THIS AGREEMENT(the "Agreement") dated this 2nd day of May 12022 BETWEEN: The Corporation of the Municipality of Kincardine (the"Municipality") -AND- Fairmount Holdings Inc. (the "Contractor") BACKGROUND A. The Corporation of the Municipality of Kincardine is of the opinion that the Contractor has the necessary qualifications, experience, and abilities to provide services to the Municipality. B. The Contractor is agreeable to providing such services to the Municipality on the terms and conditions set out in this Agreement. IN CONSIDERATION OF the matters described above and of the mutual benefits and obligation set forth in this Agreement, the receipt and sufficiency of which consideration is hereby acknowledged, the Municipality and the Contractor(individually the "Party" and collectively the "Parties"to this Agreement) agree as follows: 1. Ontario Consumer Protection Act,2002 Consumer rights as outlined in the Ontario Consumer Protection Act, 2002 can be found at the end of this Agreement as Appendix A. 2. Services Provided a) The Municipality hereby agrees to engage the Contractor to provide the Municipality with Security Services(the "Services"). b) The Services will also include any other tasks which the Parties may agree on.The Contractor hereby agrees to provide such Services to the Municipality. 3. Term of Agreement a) The term of this Agreement (the "Term")will begin on the date of this Agreement and will remain in full force and effect until the completion of the Services, subject to earlier termination as provided in this Agreement.The Term of this Agreement may be extended with the written consent of the Parties. b) In the event that either Party wishes to terminate this Agreement prior to the completion of the Services, that Party will be required to provide 30 days' written notice to the other Party. c) The term of this Agreement will be for a period of one (1)year, ending on May 31, 2023. 4. Performance a) The Parties agree to do everything necessary to ensure that the terms of this Agreement take effect. 5. Currency a) Except as otherwise provided in this Agreement, all monetary amounts referred to in this Agreement are in CAD (Canadian Dollars). 6. Compensation a) The Contractor will charge the Municipality for the Services at the rate of thirty dollars per hour ($30) (the "Compensation"). b) Statutory Holidays will be compensated for at 2.5 times the normal rate. c) The Municipality will be invoiced every month. d) Invoices submitted by the Contractor to the Municipality are due within 30 days of receipt. e) The Compensation as stated in this Agreement does not include sales tax, or other applicable duties as may be required by law. Any sales tax and duties required by law will be charged to the Municipality in addition to the Compensation. f) The Contractor will not be reimbursed for any expenses incurred in connection with providing the Services of this Agreement. 7. Penalties for Late Payment a) Any late payments will trigger a fee of 2.50% per month on the amount still owing. 8. Confidentiality a) Confidential information (the "Confidential Information") refers to any data or information relating to the business of the Municipality which would reasonable be considered to be proprietary to the Municipality including, but not limited to, accounting records, business processes, and municipal records and that is not generally known in the industry of the Municipality and where the release of that Confidential Information could reasonably be expected to cause harm to the Municipality. b) The Contractor agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any confidential information which the Contractor has obtained, except as authorized by the Municipality or as required by law.The obligations of confidentiality will apply during the term of this Agreement and will survive indefinitely upon termination of this Agreement. c) All written and oral information and material disclosed or provided by the Municipality to the Contractor under this Agreement is Confidential Information regardless of whether it was provided before or after the date of this Agreement or how it was provided to the Contractor. 9. Ownership of Intellectual Property a) All intellectual property and related material (the "Intellectual Property') that is developed or produced under this Agreement,will be property of the Contractor.The Municipality is granted a non-exclusive limited-use license of this Intellectual Property. b) Title, copyright, intellectual property rights and distribution rights of the Intellectual Property remain exclusively with the Contractor. 10. Return of Property a) Upon the expiry or termination of this Agreement, the Contractor will return to the Municipality any property, documentation, records, or Confidential Information which is the property of the Municipality. b) In the event that this Agreement is terminated by the Municipality prior to completion of the Services the Contractor will be entitled to recovery from the site or premises where the services were carried out, of any materials or equipment which is the property of the Contractor or, where agreed between the Parties, to compensation in lieu of recovery. 11. Capacity/Independent Contractor a) In providing the Services under this Agreement it is expressly agreed that the Contractor is acting as an independent contractor and not as an employee.The Contractor and the Municipality acknowledge that this Agreement does not create a partnership or joint venture between them and is exclusively a contract for service. 12. Notice a) All notices, requests, demands or other communications required or permitted by the terms of this Agreement will be given in writing and delivered to the Parties at the following addresses: The Municipality of Kincardine—Davidson Centre 601 Durham Street, Kincardine, ON N2Z 11-6 recreation@kincardine.ca Fairmount Holdings Inc. Wheildon Investments Inc. 1717 2nd Avenue, Suite 102, Owen Sound, ON N4K 5137 thomasw@fairmountsecurity.com Or to such other address as either Party may from time to time notify the other. 13. Indemnification a) Except to the extent paid in settlement from any applicable insurance policies, and to the extent permitted by applicable law, each Party agrees to indemnify and hold harmless the other Party, and its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with this Agreement.This indemnification will survive the termination of this Agreement. 14. Modification of Agreement a) Any amendment or modification of this Agreement or additional obligation assumed by either Party in connection with this Agreement will only be binding if evidenced in writing signed by each Party or an authorized representative of each Party. 15. Time of the Essence a) Time is of the essence in this Agreement. No extension or variation of this Agreement will operate as a waiver of this provision. 16. Assignment a) The Contractor will not voluntarily, or by operation of law, assign or otherwise transfer its obligations under this Agreement without prior written consent of the Municipality. 17. Entire Agreement a) It is agreed that there is representation,warranty, collateral agreement or condition affecting this Agreement except as expressly provided in this Agreement. 18. Enurement a) This Agreement will enure to the benefit of and be binding on the Parties and their respective heirs, executors, administrators and permitted successors and assigns. 19. Titles/Headings a) Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement. 20. Gender a) Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa. 21. Governing Law a) This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario. 22. Severability a) In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement. 23. Waiver a) The waiver by either Party of a breach, default, delay or omission of any of the provisions of this Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions. IN THE WITNESS WHEREOF the Parties have duly affixed their signatures under hand and seal on this 2nd day of May , 2022. The Corporation of the Municipality of Kincardine Gera gGllover 03 llllllllllllllll IIIII° 'll'I11II�III� llmlllll Verify with verifio.com or Adobe Reader. Gerry Glover, Mayor Signed with ConsignO Cloud(2022/05/03) lulllllllllllllllllllll lllll�� IIII IIIII oxana aumann Verify with verifio.com or Adobe Reader. Roxana Baumann, Acting Chief Administrative Officer Fairmount Holdings Inc. Thomas Wheildon Signed with Consign0 Cloud(2022/04/27) IIIIII IIII III II01 III011111 Verify with verifio.com or Adobe Reader. Thomas Wheildon, CEO & President Appendix A—Your Rights under the Ontario Consumer Protection Act,2002 You may cancel this Agreement at any time during the period that ends ten (10) days after the day you receive a written copy of the agreement. You do not need to give the supplier a reason for cancelling during this 10-day period. If the supplier does not make delivery within 30 days after the delivery date specified in this Agreement or if the supplier does not begin performance of his or her or its obligations within 30 days after the commencement date specified in this agreement,you may cancel this Agreement at any time before delivery or commencement of performance. You lose the right to cancel if, after the 30-day period has expired,you agree to accept delivery or authorize commencement of performance. If the delivery date or commencement date is not specified in this agreement and the supplier does not deliver or commence performance within 30 days after the date this agreement is entered into,you may cancel this agreement at any time before delivery or commencement of performance. You lose the right to cancel if, after the 30-day period has expired,you agree to accept delivery or authorize commencement of performance. In addition, there are other grounds that allow you to cancel this agreement. You may also have other rights, duties and remedies at law. For more information, you may contact the Ministry of Consumer and Business Services. To cancel this Agreement, you must give notice of cancellation to the supplier, at the address set out in the Agreement, by any means that allows you to prove the date on which you gave notice. If no address is set out in the agreement, use any address of the supplier that is on record with the Government of Ontario or the Government of Canada or is known by you. If you cancel this Agreement, the supplier has fifteen (15) days to refund any payment you have made and return to you all goods delivered under a trade-in arrangement (or refund an amount equal to the trade in allowance). However, if you cancel this agreement after having solicited the foods or services from the supplier and having requested that delivery be made or performance be commenced within ten (10) days after the date this agreement is entered into,the supplier is entitled to reasonable compensation for the goods and services that you receive before the earlier of the 111"day after the date this agreement was entered into and the date on which you gave notice of cancellation to the supplier, except goods that be repossessed by or returned to the supplier.