19 - September 27, 2022 County Council Agenda Package
TABLE OF CONTENTS
Orders–, September27,2022…………………………….……………
2
Elgin County Council Minutes –September 14, 2022………………………………
3
Reports Index…………………………………………………………………………….
12
Report –Library Programming Update……………………………….………………
13
Report –2023 Renewal of Library Database Software for a Five-Year Term..…..
27
Report –New Human Resources Policy: 2.18 Electronic Monitoring of
49
Employees at Work………...………………..………………………………
Report –FU Fiber Inc –Elgin Telecommunications Equipment Consent and
58
RUA Sept 16 2022 w Appendix…………………………………………….
Report – .………
79
Correspondence –Items for Consideration Index…………………………………...
90
Correspondence –County of Elgin –Traffic Study Recommendation…………….
91
Correspondence –Items for Information Index………………………………………
93
Correspondence –Ministry of Health Funding……………………………………….
94
Correspondence –Ministry of Health AMO………………………………………...
96
Closed Session Agenda –September 27, 2022……………………………………..
98
ORDERS OF THE DAY
ForTuesday, September 27, 2022,9:00 A.M.
Location: Masonic Centre of Elgin, 42703 Fruit Ridge Line, St. Thomas ON
st
1Meeting Called to Order
nd
2Adoption of Minutes –September 14, 2022
rd
3Disclosure of Pecuniary Interest and the General Nature Thereof
th
4Presenting Petitions, Presentations and Delegations
th
5Motion to Move Into “Committee of the Whole Council”
th
6Reports of Council, Outside Boards and Staff
th
7Council Correspondence
1.Items for Consideration
2.Items for Information (Consent Agenda)
th
8Other Business
1.Statements/Inquiries by Members
2.Notice of Motion
3.Matters of Urgency
th
9Closed Meeting Items
th
10Recess
th
11Motion to Rise and Report
th
12Motion to Adopt Recommendations from the Committee of the Whole
th
13Consideration of By-Laws
th
14Adjournment
NOTE FOR MEMBERS OF THE PUBLIC:
Please click the link below to watch the Council Meeting:
https://www.facebook.com/ElginCountyAdmin/
Accessible formats available upon request.
Page 1
September14,2022
ELGIN COUNTY COUNCIL
MINUTES
September 14, 2022
th
Elgin County Council met this 14 dayof September 2022 at the Masonic Centre of Elgin, 42703
Fruit Ridge Line, St. Thomas ON. The meeting was held in a hybrid format with Councillors and
staff participating as indicated below.
Council Present: Warden Mary French (Masonic Centre)
Deputy Warden Tom Marks (Masonic Centre)
Councillor Duncan McPhail (Masonic Centre)
Councillor Bob Purcell (Masonic Centre)
Councillor Grant Jones (Masonic Centre)
Councillor Sally Martyn (Masonic Centre)
Councillor Dominique Gigure (Masonic Centre)
Councillor Ed Ketchabaw (Masonic Centre)
Regrets: Councillor Dave Mennill (previous notice provided)
Staff Present: Julie Gonyou, Chief Administrative Officer (Masonic Centre)
Brian Lima, General Manager of Engineering, Planning & Enterprise/Deputy
CAO (Masonic Centre)
Michele Harris, Director of Homes and Seniors Services (Masonic Centre)
Amy Thomson, Director of Human Resources (virtual)
Brian Masschaele, Director of Community & Cultural Services (virtual)
Jennifer Ford, Director of Financial Services/Treasurer (virtual)
Terri Benwell, Administrator, Bobier Villa and Elgin Manor (Masonic Centre)
Nicholas Loeb, Senior Legal Counsel (Masonic Centre)
Mike Hoogstra, Manager of Procurement & Risk (report only; virtual)
Jenna Fentie, Manager of Administrative Services (Masonic Centre)
Natalie Marlowe, Library Coordinator (report only)
Sarah Savoie, Accessibility Coordinator (report only; virtual)
Delany Leitch, Business Enterprise Facilitator (Masonic Centre)
Stefanie Heide, Legislative Services Coordinator (Masonic Centre)
1. CALL TO ORDER
The meeting convened at 9:02 a.m. with Warden French in the chair.
Councillors and Staff observed a moment of reflection to mourn and reflect on the life and
legacy of Queen Elizabeth II.
2. ADOPTION OF MINUTES
Moved by: Councillor Purcell
Seconded by: Councillor Jones
RESOLVED THAT the minutes of the meeting held on August 9, 2022 be adopted.
- Motion Carried.
3. DISCLOSURE OF PECUNIARY INTEREST AND THE GENERAL NATURE THEREOF
None.
4. PRESENTING PETITIONS, PRESENTATIONS AND DELEGATIONS
None.
Page 2
September14,2022
5. COMMITTEE OF THE WHOLE
Moved by: Deputy Warden Marks
Seconded by: Councillor Ketchabaw
RESOLVED THAT we do nowmove into Committee of the Whole Council.
- Motion Carried.
6. REPORTS OF COUNCIL, OUTSIDE BOARDS AND STAFF
6.1 WardenÓs Activity Report (August) and COVID-19 Update Î Warden French
Warden French provided County Council with a high-level summary of the CountyÓs
response to the pandemic as well as a list of events and meetings she attended
and organized on behalf of County Council.
Moved by: Councillor Martyn
Seconded by: Councillor McPhail
RESOLVED THAT the report titled ÐWardenÓs Activity Report (August) and COVID-
19 UpdateÑ dated August 26, 2022 from Warden French be received and filed.
- Motion Carried.
6.2 Elgin-St. Thomas Age Friendly Network - Update Î Chief Administrative
Officer
The Chief Administrative Officer presented the report recommending that the
County take a leadership role in organizing a multi-stakeholder team that will set
priorities and action plans, and provide community leadership. Through this role,
the County of Elgin will re-engage, provide leadership and staff support to the
Elgin-St. Thomas Age Friendly Network.
Moved by: Councillor Martyn
Seconded by: Councillor Jones
RESOLVED THAT the report titled ÐElgin-St. Thomas Age Friendly Network -
UpdateÑ dated September 7, 2022 from the Chief Administrative Officer be received
and filed for information; and
THAT Elgin County Council direct staff to re-engage the Elgin-St. Thomas Age
Friendly Network.
- Motion Carried.
6.3 2021 Financial Statements Overview Î Director of Financial
Services/Treasurer
The Director of Financial Services/Treasurer presented the report serving to update
Councilontheyearendresultsandobtainapprovaltoaffixsignaturesand
distribute these documents in order to finalize the 2021 financial year end.
Moved by: Councillor Ketchabaw
Seconded by: Deputy Warden Marks
RESOLVED THAT the report titled Ð2021 Financial Statements OverviewÑ dated
September 6, 2022 from the Director of Financial Services/Treasurer be
received; and
THAT County Council approve the 2021 Financial Statements as presented and
authorize the Warden, Chief Administrative Officer and Treasurer to sign and
publish same for public and funding partner use.
- Motion Carried.
Page 3
September14,2022
6.4 Procurement Activity Report (April 1, 2022 to June 30, 2022) Î Manager of
Procurement & Risk
The ManagerofProcurement & Risk presented the Procurement Activity Report
covering the period from April 1, 2022 to June 30, 2022.
Moved by: Councillor Jones
Seconded by: Councillor Gigure
RESOLVED THAT the report titled ÐProcurement Activity Report (April 1, 2022 to
June 30, 2022)Ñ dated August 24, 2022 from the Manager of Procurement & Risk
be received and filed.
- Motion Carried.
6.5 Best Practice Spotlight Organization (BPSO) County of Elgin Homes Î
Director of Homes & Seniors Services
The Director of Homes & Seniors Services presented the Best Practice Spotlight
Organization (BPSO) County of Elgin Homes presentation.
Moved by: Councillor Purcell
Seconded by: Councillor Jones
RESOLVED THAT the presentation titled ÐBest Practice Spotlight Organization
(BPSO) County of Elgin HomesÑ dated September 14, 2022 from the Director of
Homes & Seniors Services be received and filed.
- Motion Carried.
6.6 AccessibilityContentStyleandDesignGuideandCreatingAccessible
Documents Guide Î Accessibility Coordinator
The Accessibility Coordinatorpresented the report on the Accessibility Content
Style and Design Guide and the Creating Accessible Documents Guide.
Moved by: Deputy Warden Marks
Seconded by: Councillor Jones
RESOLVED THAT the Elgin County ÒAccessibility Content Style and Design
GuideÓ and ÒCreating Accessible Documents GuideÑ be received for information.
- Motion Carried.
6.7 Elgin County Library Policy Revision Î ÐCollection Development PolicyÑ Î
Library Coordinator
The Library Coordinator presented the report recommending revisions to Elgin
County LibraryÓs ÐCollection Development PolicyÑ as part of an ongoing review of
librarypolicies.
Moved by: Councillor Gigure
Seconded by: Councillor Martyn
RESOLVED THAT the report titled ÐElgin County Library Policy Revision Î
Collection Development PolicyÑ dated September 1, 2022 from the Library
Coordinator be received and filed; and
THAT the ÐCollection Development PolicyÑ be hereby adopted.
- Motion Carried.
Page 4
September14,2022
6.8 Elgin County Library Programming Update Î Digital Services Librarian
Moved by: Councillor McPhail
Secondedby:CouncillorKetchabaw
RESOLVED THAT the report titled ÐElgin County Library Programming UpdateÑ
be deferred.
- Motion Carried.
6.9 Official Plan Amendment No. 1 to the Official Plan of the Township of
Southwold File No. SO OPA 22-01 Î General Manager of Engineering,
Planning & Enterprise/Deputy CAO
The General Manager of Engineering, Planning & Enterprise/Deputy CAO
presented the report that provides County Council with information required in
order to consider granting approval to Official Plan Amendment No. 1 to the Official
Plan of the Township of Southwold File No. SO OPA 22-01.
Moved by: Councillor Purcell
Seconded by: Councillor Jones
RESOLVED THAT the Council of the Corporation of the County of Elgin
approves Official Plan Amendment No. 1 to the Township of Southwold Official
Plan; and
THAT staff be directed to provide notice of this decision in accordance with the
Planning Act.
- Motion Carried.
6.10 OfficialPlanAmendmentNo. 5 totheOfficialPlanoftheMunicipalityof
Dutton Dunwich File No.DD OPA 22-05 Î General Manager of Engineering,
Planning & Enterprise/Deputy CAO
Moved by: Councillor Jones
Seconded by: Deputy Warden Marks
RESOLVED THAT Official Plan Amendment No. 5 to the Official Plan of the
Municipality of Dutton Dunwich be deferred for consideration at a future meeting.
- Motion Carried.
6.11 Request for Exemption from Draft Plan Approval for Plan of Condominium on
Part of Park Lot 6, Plan 145; Parts 1, 2 and Parts 7-10, 11R-8159, in the Town
of Aylmer, County of Elgin (85 Forest Street, Aylmer) Î General Manager of
Engineering, Planning & Enterprise/Deputy CAO
The General Manager of EPE/Deputy CAO presented the report that provides
County Council with information required in order to consider granting an
exemptiontodraftplanapprovaltothePlanofCondominium on PartofParkLot6,
Plan 145; Parts 1, 2, and 7-10, 11R-8159 in the Town of Aylmer (85 Forest Street).
Moved by: Councillor Jones
Seconded by: Councillor McPhail
RESOLVED THAT the Council of the Corporation of the County of Elgin, in
accordance with Section 9 of the Condominium Act, grants an exemption to draft
plan approval for a Draft Plan of Phased Condominium on Part of Park Lot 6,
Plan 145; Parts 1, 2 and Parts 7-10, 11R-8159 (85 Forest Street), in the Town of
Aylmer, File No.43CD-AY2201; and
THAT staff be directed to prepare and issue a certificate of exemption, and sign
and submit the final plans to the Land Registry Office in accordance with the
requirements of the Planning Act and Condominium Act.
Page 5
September14,2022
- Motion Carried.
6.12 TrafficCalmingOptions Î EastRoad Î GeneralManagerofEngineering,
Planning & Enterprise/Deputy CAO
The General Manager of EPE/Deputy CAO presented the report that provides
appropriate options for a traffic calming pilot project on East Road in Port Stanley
as directed by Council.
Moved by: Deputy Warden Marks
Seconded by: Councillor Martyn
RESOLVED THAT staff proceed with a pilot traffic calming initiative on East
Road in Port Stanley as detailed in the General ManagerÓs report entitled ÐTraffic
Calming OptionsÑ as Option 1, with an estimated cost of $15,000, provided that
the Municipality of Central Elgin fund all costs associated with installation,
maintenance and removal; and
THAT staff be directed to evaluate the 1-year pilot project and provide a follow
up report to County Council immediately after the pilot project is completed.
- Motion Carried.
6.13 Request to Extend Reduced Speed Zone Î Hamlet of Eden Î General Manager
of Engineering, Planning & Enterprise/Deputy CAO
The General Manager of Engineering, Planning & Enterprise/Deputy CAO
presented the report detailing the resident request to extend the reduced speed
zone along Plank Road (CR #19). The report recommends an amendment to the
reduced speed zone by-law to support an extension of the reduced speed zone at
the north and south limits of Eden.
Moved by: Councillor Ketchabaw
Seconded by: Deputy Warden Marks
RESOLVED THAT the report titled ÐRequest to Extend Reduced Speed Zone Î
Hamlet of EdenÑ from the General Manager of Engineering, Planning, &
Enterprise (EPE) / Deputy CAO, dated September 14, 2022 be received and
filed; and
THAT the By-Law 20-58, being a by-law to authorize speed limits be amended to
state:
The 50km/h reduced speed zone along Plank Road; from 880 metres south of
the north property line of County Road 44 to 565 metres north of the north
property line of County Road 44.
- Motion Carried.
6.14 POAGeneratorInstallation Î TenderAward Î GeneralManagerof
Engineering, Planning & Enterprise/Deputy CAO
The Chief Administrative Officer noted that, upon closer inspection, the project
significantly exceeds the budgeted amount for 2022 and would fall under lame
duck. The report was not considered.
Page 6
September14,2022
6.15 Elgin / Diamond Senior Living Corp. Î Royal Oak Senior Living Î Elgin Manor
Waste Water Treatment Plant Service Agreement Î General Manager of
Engineering, Planning & Enterprise/Deputy CAO
The General Manager of Engineering, Planning & Enterprise/Deputy CAO
presented the report that seeks CouncilÓs approval for the execution of a five-year
Service Agreement with Diamond Senior Living Corp for the provision of waste
water treatment utilizing the Elgin Manor Waste Water Treatment Facility to support
the Royal Oak Senior Living Facility.
Moved by: Councillor Martyn
Seconded by: Councillor Jones
RESOLVED THAT the report titled ÐElgin / Diamond Senior Living Corp. Î Royal
Oak Senior Living Î Elgin Manor Waste Water Treatment Plant Service
AgreementÑ dated September 7, 2022 from the General Manager of Engineering,
Planning & Enterprise/Deputy CAO be received and filed; and
THAT Elgin County Council authorize the Warden and Chief Administrative
Officer to execute the Service Agreement with Diamond Senior Living Corp. on
behalf of the municipal corporation.
- Motion Carried.
6.16 Proposed Redistribution of Federal Electoral DistrictsÎ Chief Administrative
Officer
The Chief Administrative Officer presented the report that provides background and
analysis of the proposed new electoral map released by the Federal Electoral
Boundaries Commission for the Province of Ontario on August 19, 2022.
Moved by: Councillor Ketchabaw
Seconded by: Councillor Martyn
RESOLVED THAT the report titled ÐProposed Redistribution of Federal Electoral
DistrictsÑ from the Chief Administrative Officer dated September 7, 2022 be
received for information; and
THAT the County of Elgin coordinate efforts with Local Municipal Partners and the
City of St. Thomas to represent interests and concerns pertaining to the proposed
federal electoral boundary districts; and
THAT the County of Elgin develop a submission and make a presentation at the
Federal Electoral Boundaries Commission for the Province of Ontario; and
THAT the submission and presentation guiding principle be that the County of Elgin
be fully contained and represented within one federal electoral district with the
entirety of Elgin County and the City of St. Thomas.
- Motion Carried.
6.17 Integrity Commissioner, Closed Meeting Investigator and Municipal
Ombudsman Î Contract Award Î Chief Administrative Officer
The Chief Administrative Officer presented the report recommending that Aird &
Berlis LLP be awarded the contract for Integrity Commissioner, Closed Meeting
Investigator and Municipal Ombudsman for a two-year term, with the option to
extend the contract for an additional two-year term.
Moved by: Councillor Ketchabaw
Seconded by: Deputy Warden Marks
RESOLVED THAT the contract for Integrity Commissioner, Closed Meeting
Investigator and Municipal Ombudsman be awarded to Aird & Berlis LLP for a two-
year term; and
Page 7
September14,2022
THAT staff be authorized to extend the contract for an additional two-year term,
subject to section 7.6 of the Procurement Policy; and
THAT the Warden and Chief Administrative Officer be authorized to sign a contract
for Integrity Commissioner, Closed Meeting Investigator and Municipal
Ombudsman services on terms and conditions acceptable to the County Solicitor
and Chief Administrative Officer.
- Motion Carried.
7. COUNCIL CORRESPONDENCE
7.1 Items for Consideration
None.
7.2 Items for Information
7.2.1Nina Bifolchi, Mayor, Town of Wasaga Beach with a resolution addressing
concerns with the Strong Mayors, Building Homes Act.
7.2.2 VON Middlesex-Elgin Community Corporation 2021-2022 Annual Report.
Moved by: Councillor Jones
Seconded by: Councillor Martyn
RESOLVED THAT correspondence items 7.2.1 Î 7.2.2 be received and filed.
- Motion Carried.
8. OTHER BUSINESS
8.1 Statements/Inquiries by Members
None.
8.2 Notice of Motion
None.
8.3 Matters of Urgency
None.
9. CLOSED MEETING ITEMS
Moved by: Councillor Gigure
Seconded by: Councillor Jones
RESOLVED THAT we do nowproceed into closed meeting session in accordance with
the Municipal Act to discuss the following matters under Municipal Act Section 239 (2):
In-Camera Item #1
(k) a position, plan, procedure, criteria or instruction to be applied to any negotiations
carried on or to be carried on by or on behalf of the municipality or local board Î Contract
Negotiations
In-Camera Item #2
(b) personal matters about an identifiable individual, including municipal or local board
employees; (k) a position, plan, procedure, criteria or instruction to be applied to any
negotiations carried on or to be carried on by or on behalf of the municipality or local
board Î Organizational Update
Page 8
September14,2022
- Motion Carried.
10. MOTION TO RISE AND REPORT
Moved by: Councillor Gigure
Seconded by: Deputy Warden Marks
RESOLVED THAT we do now rise and report.
- Motion Carried.
In-Camera Item #1 Î Contract Negotiations
Moved by: Councillor Purcell
Seconded by: Councillor Jones
RESOLVED THAT staff proceed as directed.
- Motion Carried.
In-Camera Item #2 Î Organizational Update
Moved by: Councillor McPhail
Seconded by: Councillor Gigure
RESOLVED THAT the report from the Chief Administrative Officer be received.
- Motion Carried.
11. MOTION TO ADOPT RECOMMENDATIONS FROM THE COMMITTEE OF THE WHOLE
Moved by: Councillor Ketchabaw
Seconded by: Councillor Jones
RESOLVED THAT we do now adopt recommendations of the Committee of the Whole.
- Motion Carried.
12. CONSIDERATION OF BY-LAWS
12.1 By-Law No. 22-40 ೃ Speed Zone Amendment
BEING a By-Law to Amend the Schedule to By-Law No. 20-58 Being a By-Law to
Authorize Speed Limits.
Moved by: Councillor Ketchabaw
Seconded by: Councillor Martyn
RESOLVED THAT By-Law No. 22-40 be now read a first, second and third time
and finally passed.
- Motion Carried.
12.1 By-Law No. 22-41 ೃ Confirming Actions and Proceedings
BEING a By-LawtoConfirmProceedingsoftheMunicipalCouncilofthe
Corporation of the County of Elgin at the September 14, 2022 Meeting.
Moved by: Councillor Jones
Seconded by: Deputy Warden Marks
Page 9
September14,2022
RESOLVED THAT By-Law No. 22-41 be now read a first, second and third time
and finally passed.
- Motion Carried.
14. ADJOURNMENT
Moved by: Deputy Warden Marks
Seconded by: Councillor Purcell
RESOLVED THAT we do now adjourn at 11:58 a.m. to meet again on September 27,
2022 at 9:00 a.m.
- Motion Carried.
Julie Gonyou, Mary French,
Chief Administrative Officer. Warden.
REPORTS OF COUNCIL AND STAFF
September 27, 2022
Staff Reports – ATTACHED
Digital Services Librarian – Elgin County Library Programming Update
Director of Community and Cultural Services – 2023 Renewal of Library Database Software for
a Five-Year Term
Director of Human Resources – New Human Resources Policy: 2.18 Electronic Monitoring of
Employees at Work
Senior Counsel – Elgin (County) / FU Fiber Inc. - Telecommunications Equipment Consent and
Road User Agreement
General Manager of EPE / Deputy CAO – Official Plan Amendment No. 5 to the Official Plan of
the Municipality of Dutton Dunwich File No.:
DDOPA22-05 Applicant: Municipality of Dutton
Dunwich
1
REPORT TO COUNTY COUNCIL
FROM: Brian Masschaele, Director of
Community and Cultural Services
Natalie Marlowe, Library Coordinator
DATE: September 19, 2022
SUBJECT: 2023 Renewal of Library Database
Software for a Five-Year Term
RECOMMENDATIONS:
THAT the September 19, 2022 report titled 2023 Renewal of Library Database
Software for a Five-Year Term, submitted by the Director of Community and Cultural
Services and the Library Coordinator, be received; and
THAT the Chief Administrative Officer on behalf of the Warden and County Council be
authorized to execute an agreement for the renewal of Integrated Library System
software between Elgin County Library and Innovative Interfaces, Inc. for a five-year
term beginning January 1, 2023 and concluding on December 31, 2027 with associated
costs approved in the 2023 County budget and ten-year business plan subject to the
terms and conditions laid out in the report titled 2023 Renewal of Library Database
Software for a Five-Year Term.
INTRODUCTION:
-facing catalogue and collection management software, also known
as Integrated Library System (ILS) software, is due for renewal by the end of 2022.
This software serves as the main platform for the loan, circulation, and management of
all library materials which approaches 227,000 physical items, plus digital materials and
electronic resources. It also serves as the primary tool for facilitating well over 240,000
transactions per year for the loan of library materials to library card holders in an
average year. It manages a large amount of data and personal information relating to
approximately 8,500 library card holders. Additional functionality includes the ability to
make reservations for program attendance, payment of fines and fees, management of
loan periods and circulation parameters of each library collection, cataloguing tools and
features to add or delete materials, as well as a robust statistics collection tool. The
ILS is a critical piece of County infrastructure that must be secure, reliable, and powerful
in its searching capabilities on a 24/7 basis. Furthermore, it must be future-driven and
must be able to meet user needs on multiple platforms, including computers, tablets and
smartphones.
2
This report recommends that the contract for ILS software be renewed with Innovative
st
Interfaces, Inc. for a five-year term beginning on January 1, 2023 based on the solid
performance of the product during the first term of the contract, critical network security
improvements that will be achieved, and attributes that meet all of the
requirements.
DISCUSSION:
Innovative Interfaces, Inc. expires on December 31, 2022. The library implemented
/Encore product in late 2015 on an initial seven-year term. The
product has performed extremely well, serving -facing catalogue
and collection management tool. As a result, library staff are now recommending a
st
subsequent renewal for a further five year-term beginning January 1, 2023 based on
the following overview:
General Contract Analysis
Ώ T he new agreement will have a term of 5 years/60 months, with a 3% annual
uplift rate each year.
Ώ includes continuing the current package of ILS software
provisions and functionality (i.e. Sierra/Encore ILS), and will now bundle
functionality added by the library since the first inception of the contract to include
the MyLibrary! app, Mobile Worklists app and self-checkout software (which was
-19 response).
Ώ The contract introduces enhanced functionality for the public-facing catalogue to
further improve the user experience through what is termed in the industry as a
, in this case called the Encore LX Starter package. This starter
package may lead to a future recommendation on a more robust discovery layer
in future years subject to budget considerations.
Ώ Appropriate training support at regular intervals is encompassed in the contract,
including for the Library Coordinator and Digital Services Librarian who both play
key roles in the administration of the software.
Ώ support
this contract renewal without requiring further resources or intensive training.
Implementation of Innovative Cloud Hosting Service
This renewal will result in a move to a new data hosting arrangement directly with
Innovative Interfaces, Inc. thr
and benefits of this move are as follows:
Ώ It will achieve critical upgrades to data security that go well beyond those
available through a locally hosted solution and without adding additional
t. Tools included with cloud hosting
include enhanced firewall protection, intrusion detection, software upgrades,
3
malware detection, use of multi-factor authentication, and disaster recovery tools.
These are all critical features that mitigate risks from cyber-attacks as
experienced during earlier this year.
Ώ
data hosting services will terminate on December 31, 2022. Initial notices to this
effect have already been issued.
Ώ Sierra and Encore data will be migrated to and stored on servers located in
Canada. This migration process will be secure and will conform to privacy
legislation, especially the Municipal Freedom of Information of Protection of
Privacy Act. Innovative Interfaces, Inc. has a well-established track record in this
regard with other Ontario libraries. Data migration will take place in
November/December and prior to the hosting agreement ending with LPL on
December 31, 2022.
Ώ This move will facilitate future ILS and Sierra planning, as next steps for new
functionality will only be available through a cloud hosted or oftware as a
Service (or SaaS) model.
Notable Improvements to ILS Functionality
Functionality improvements include:
Ώ New and modern notices, email communication journeys, and better analytics.
These things will improve communication with customers and customer
engagement, as well as improve the customer experience and even help the
library to maintain and increase membership.
Ώ The renewal positions the library strategically to adopt and transition smoothly to
modules of a new discovery layer called Vega in the coming years if we so
choose and if budget capacity exists. This sampler being provided in this contract
also provides the ability to test and try certain functions prior to investing in the
entire module.
Single Source Procurement
Manager of Procurement & Risk recommends proceeding with this
contract renewal on a single-
compatibility with
goods and/or services previously acquired or the required goods and/or services will be
additional to similar goods and/or services being supplied under an existing contract
Single source can be further justified by the fact
that costs associated with data migration and training of customers and staff to migrate
to another software product will be considerable and could not be achieved within the
same cost structure and without service disruptions.
4
FINANCIAL IMPLICATIONS:
There is a one-time data migration cost associated with this move quoted at $8,419 plus
applicable taxes. This cost will be covered from a one-time credit that the library will
receive from Innovative Interfaces, Inc.in the amount of $10,650 for self-checkout
software as that software had a subscription renewal at the end of 2023 but is now
encompassed in the five-year renewal.
The total cost for the contract renewal itself in Year 1 is $62,768 which represents an
annual increase of approximately $9,000 compared to 2022 costs in order to achieve
the added functionality and increased security protection. The following allocations are
already encompassed in the 2022 operating budget and will be re-allocated to the
renewal in 2023:
$30,500 annually for Sierra (currently in the IT budget);
$13,000 annually for data hosting services to London Public Library (currently in
the IT budget);
$6,000 annually for subscription to the MyLibrary App and Mobile Worklists App
(currently in the Library Services budget);
$2,000 annual
Library Services budget).
$2,231 from a one-time credit from Innovative Interfaces. Inc. for self-check
software (referenced above).
Cumulatively, these allocations amount to $53,731. As a result, an additional $9,038
will be required to fund the contract renewal as part of the 2023 budget process. Years
2 to 5 will also require the three per cent annual uplift increase plus mitigation of the
$2,231 credit received for Year 1 and will -year
business plan.
ALIGNMENT WITH STRATEGIC PRIORITIES:
5
Serving Elgin Growing Elgin Investing in Elgin
Ensuring alignment of Planning for and Ensuring we have the
current programs and facilitating commercial, necessary tools,
services with community industrial, residential, resources, and
need. and agricultural growth. infrastructure to deliver
programs and services
now and in the future.
Exploring different Fostering a healthy
ways of addressing environment.
Delivering mandated
community need.
programs and services
Enhancing quality of
efficiently and
Engaging with our
place.
effectively.
community and other
stakeholders.
LOCAL MUNICIPAL PARTNER IMPACT:
Reciprocal borrowing with St. Thomas Public Library will continue during the term of this
renewal. Residents of both the County and the City will still be able to obtain library
cards free of charge and borrow materials from both systems.
London Public Library has provided excellent support and data hosting services over
the course of the initial contract. The move to a cloud solution for data hosting is being
done largely for reasons pertaining to business continuity and security and is not a
reflection of the service London has provided. The two systems will continue to have a
strong partnership going forward.
There are a number of libraries in Ontario that use the platform provided by Innovative
Interfaces, Inc., including London, Middlesex County and Chatham-Kent. Existing
partnerships relating to training, support and procurement opportunities will be
maintained with these systems through this renewal.
COMMUNICATION REQUIREMENTS:
channels.
CONCLUSION:
The Sierra / Encore ILS and its related apps / modules provided by Innovative
Interfaces, Inc. continues to perform well for Elgin County Library users and staff. The
product is well supported and investments are continually being made by the company
to improve its functionality. The lifespan of an ILS system often encompasses at least
one contract renewal given the costs and time associated with staff / user training, data
6
migration and disruption of service, total costs for which can be far greater than costs
associated with a contract renewal with the same provider. Staff are recommending
that contract be renewed for a further term beginning on
January 1, 2023 and extending to December 31, 2027.
All of which is Respectfully Submitted Approved for Submission
Julie Gonyou
Brian Masschaele
Chief Administrative Officer
Director of Community and Cultural
Services
Natalie Marlowe
Library Coordinator
INNOVATIVE INTERFACES INCORPORATED
SUBSCRIPTION LICENSE AGREEMENT
This Subscription License Agreement (ÐLicense AgreementÑ) is entered into by and between Innovative
Interfaces Incorporated, a California corporation (ÐInnovativeÑ), and the party identified as Client below (ÐClientÑ), as
of the ÐEffective DateÑ also set forth below.
Elgin County Public Library
Client
Address 450 Sunset Drive
St. Thomas, ON N5R 5V1
CU4877
Customer No.
Effective Date
Initial Term 60 Months
1.Definitions.
ÐGo-Live DateÑ means the ClientÓs first use of the Software in a production environment.
ÐGTCsÑ means the Innovative Interfaces Incorporated Subscription License Agreement General Terms and
Exhibit B.
Conditions in
ÐSupport TermsÑ means the Innovative Interfaces Incorporated Maintenance and Support Terms and Conditions
in Exhibit C.
ÐHosting TermsÑ means the Innovative Interfaces Incorporated Hosting Terms and Conditions in Exhibit D.
2.General. Innovative and Client agree that this License Agreement is a binding agreement between the
parties and is governed by the GTCs, Support Terms and, if the attached Pricing Exhibit indicates that Client has
purchased hosting services, then the Hosting Terms, all of which are made a part hereof. This License Agreement,
the GTCs, Support Terms, Hosting Terms, if applicable, and all other exhibits, schedules and terms and conditions
referenced by or in this License Agreement, the GTCs, Support Terms or Hosting Terms together constitute the
ÐAgreement.Ñ Client acknowledges and agrees that it has had the opportunity to review the Agreement, including
without limitation, the GTCs, Support Terms and Hosting Terms, prior to the execution of this License Agreement.
Unless otherwise specified, capitalized terms in this License Agreement have the same meaning as those in the
GTCs. This Agreement is governed by and interpreted in accordance with the internal substantive laws of the State
of New York, without regard to any other laws that would require the application of the laws of another jurisdiction.
Application of the U.N. Convention on Contracts for the International Sale of Goods is hereby excluded.
In consideration of InnovativeÓs grant to Client of a subscription license to the Software as described within Exhibit
A Client acknowledges, and the parties agree, that contemporaneously with the Go-Live Date, the Subscription
License Agreement between the Parties effective as of March 19, 2019 (ÐPrior Subscription Agreement(s)Ñ), will be
deemed to be immediately terminated by the partiesÓ mutual written agreement. To the extent Client remains in
possession of any proprietary Innovative documentation or materials subject to the Prior Agreements Client agrees
that it shall continue to keep such documentation and materials confidential pursuant to the terms of the Agreement.
EXHIBITS TO LICENSE AGREEMENT
A PRICING EXHIBIT
B GENERAL TERMS AND CONDITIONS
C MAINTENANCE AND SUPPORT TERMS AND CONDITIONS
D HOSTING SERVICES TERMS AND CONDITIONS
In witness whereof, the parties have executed this Agreement by their duly authorized representatives as
of the Effective Date.
ClientInnovative
Elgin County Public LibraryInnovative Interfaces Incorporated
By:
By:
Name: Name:
Title: Title:
Date: Date:
Exhibit A
Pricing Exhibit
Fees. All Fees must be paid to Innovative within 30 days from the invoice date or as stated on the invoice
if different.
Term. Subject to the early termination provisions set forth in the GTCs, this Agreement will be effective for
an initial term of five (5) years following the Go-Live Date (the ÐInitial TermÑ). This Agreement will be
automatically renewed for additional one (1) year terms (each, a ÐRenewal TermÑ and, together with the
Initial Term, the ÐTermÑ), unless either party gives the other not less than ninety (90) daysÓ prior written
notice of its intent to terminate this Agreement effective as of the end of the then-current Term. Through
the Initial Term, Innovative will have the right to increase rates hereunder by a maximum percentage
equivalent to 3% over the previous year. If renewed and commencing upon year six (6) and thereafter,
Innovative will have the right to increase rates hereunder by a maximum percentage equivalent to 5% over
the previous year
Annual Subscription Term. ClientÓs annual subscription is January 1 through December 31 (the Ð Annual
Subscription TermÑ). If applicable, Innovative will prorate the subscription of the products hereunder to
run coterminous with the Annual Subscription Term.
Additional Term(s):
Should Client elect during the Initial Term to purchase any Vega software product from Innovative,
Client may cancel its Self-Check station license subscription by providing Innovative not less
than ninetydaysÓ prior written notice of its intent to cancel its Self-Check station license subscription
effectiveas of the end of the then-current annual term.
\[APPROVED SOFTWARE LICENSE QUOTE FOLLOWS THIS PAGE\]
Exhibit B
Innovative Interfaces Incorporated
Subscription License Agreement
General Terms and Conditions
Unless otherwise specified, capitalized terms in these GTCs have the same meaning as those in the
License Agreement.
1.Software License.
a.Subject to the terms and conditions of this Agreement, including without limitation Client's payment of all of
the Fees (defined below) due hereunder, Innovative hereby grants to Client a limited, nonexclusive, non-sub-
licensable, nontransferable license to use the components of its software applications, modules, and other products
that are listed in the Pricing Exhibit to the License Agreement (collectively, the "Software"). The license granted in
the preceding sentence will be for the duration of the term of this Agreement and will automatically expire upon the
termination or expiration of this Agreement or as otherwise specified in this Agreement.
b.Client and, where applicable, its Authorized Users (defined below) may use the Software (including any
Client Configurations) (i) only for the management of the library and for servicing its patrons (including permitting
Authorized Users to search library catalogues), and not on an outsourced basis, as a service bureau, for resale, or
similarly on behalf of or for the direct or indirect benefit of third parties, and (ii) only in accordance with the other
terms of this Agreement. Client will be responsible for its Authorized Users' compliance with the terms hereof.
Without limiting the foregoing, Client agrees that it and its Authorized Users will: (i) comply with all applicable laws
regarding the transmission of data, including, without limitation, any applicable export control and data protection
laws; and (ii) not use the Software for illegal purposes.
c.Subject to Section 11 (Client Configurations), other than Innovative, no one is permitted to copy, modify,
reverse engineer, decompile, or disassemble the Software, create derivative works thereof, or separate the
Software into its component files. All rights to the Software that are granted to Client in this Agreement are limited
to the object code versions of the Software and in no event will Client be deemed to have any right, title or interest
in the source code of the Software.
d.The Software may be used by the base number of Client's worldwide employees, third-party auditors,
agents and contractors ("Authorized Users") set forth in the Pricing Exhibit to the License Agreement for such
Software and such additional Authorized Users as may be hereafter identified to Innovative by Client for which
Client pays the additional Fees referred to in Section 4(a) of this Agreement. Each Authorized User license is
allocable to a single full-time user of the Software and may be transferred to another user only on a full-time basis.
Authorized User license(s) may not be shared on a part time or concurrent user basis. For the avoidance of doubt,
Client patrons do not fall within the restrictions of Authorized Users.
e.The license granted to Client pursuant to this Agreement will include, at no additional cost, a license to use
all new scheduled major releases, service pack releases, and hot fixes of the Software offered generally by
Innovative to its clients during the term of this Agreement (collectively, "New Releases"). "New Releases" do not
include new or additional modules, applications or other software now or hereafter offered by Innovative, each of
which require a separate license and payment of additional license fees. The term ÐSoftwareÑ will be deemed to
include New Releases. Except to the extent that Client purchases InnovativeÓs hosting service, additional fees at
Innovative's then-prevailing professional service rates will apply for implementation of New Releases.
f.Innovative offers support for the Software in accordance with the Support Terms, the terms of which are
incorporated by reference herein.
g.The license granted hereunder grants Client the right to use a single production instance (copy) of the
Software and up to two (2) additional instances (copies) of the Software for non-production use at no additional
charge. All copies of the Software are subject to the terms of this Agreement. Non-production use includes training,
development, testing, quality assurance, staging or preproduction provided that the copies of the Software are not
used in a production environment or as a backup to production. Except to the extent expressly set forth in a License
Agreement, this license grant does not provide Client with any rights to hosting services.
h. If, during the Term of this Agreement, Innovative discontinues any Software, then Innovative will deliver to
Client notice to such effect no less than twelve (12) months prior to the discontinuation of such Software and ClientÓs
annual Fees will be decreased a pro-rated amount equal to the annual line item Fees for that Software starting in
the next yearsÓ annual invoice.
2. Acceptance. Following the execution of the Agreement by the parties, Innovative will deliver the Software,
in its preconfigured, out-of-the box format, to Client (i) via the Internet, if Client has purchased hosting services from
Innovative pursuant to the Hosting Terms or (ii) by making it available to Client to download via an FTP site or other
mutually agreed upon method, if Client has not purchased hosting services from Innovative pursuant to the Hosting
Terms. Client will be deemed to have accepted that the out-of-the box Software has been delivered upon initial
download or receipt.
3. Ownership.
a. All Intellectual Property Rights (defined below) in the Software and also including, without limitation, all
improvements, enhancements, modifications, Client-specific upgrades, or updates to the Software, developed by
either party, solely or jointly (collectively, "Innovative Products"), will remain the exclusive, sole and absolute
property of Innovative or the third parties from whom Innovative has obtained the right to use the Innovative
Products. Intellectual property created by Innovative pursuant to this Agreement, or any other party at the request
or direction of Innovative, will be owned by Innovative. "Intellectual Property Rights" means any and all intellectual
property rights existing from time to time under any law or regulation, including without limitation, patent law,
copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair
competition law, publicity rights law, or privacy rights law, and any and all other proprietary rights, and any and all
applications, renewals, extensions and restorations of any of the foregoing, now or hereafter in force and effect
worldwide. Client hereby assigns to Innovative all right, title and interest in any feedback and suggestions it provides
to Innovative regarding the Software or other products commercialized by Innovative now or in the future. This
Agreement does not convey to the Client any interest in or to the Innovative Products or any associated Intellectual
Property Rights, but only a limited right to use the Software to the extent set forth in this Agreement, which right is
terminable in accordance with the terms of this Agreement and is otherwise subject to the limitations, restrictions,
and requirements contained herein. If Client configures or otherwise modifies the Software using an API licensed
hereunder, Client will also have a license to use such configurations or modifications as part of the Software on the
terms set forth in Section 1. Rights not expressly granted to the Client are hereby expressly reserved by Innovative.
b. For purpose of this Agreement, as between Innovative and Client, any Intellectual Property Rights in the
Innovative Products to the extent owned by any third party will be and remain the exclusive property of such third
party. The Software may include third-party software and products, which are described in the documentation and/or
Specifications made available to Client by Innovative, and any third-party pass-through terms relating to such third-
party software and products are identified therein (or by other mode of disclosure).
c. Except as expressly stated herein, Client will exclusively have and retain all right, title and interest, including
all associated Intellectual Property Rights, in and to data that Client enters into the Software or disclosed by Client
to Innovative in its performance hereunder ("Client Data"), and, as between Client and Innovative, such Client Data
will remain the sole property of Client. Client hereby grants to Innovative a license to use Client Data (i) to process
the Client Data pursuant to Client's business requirements, (ii) for maintenance and support of the Software, (iii) to
collect and use aggregate, non-identifying and anonymized data, and (iv) for research and development purposes.
Client acknowledges and agrees that it will have no rights in any products or services created or sold by Innovative
or its affiliates that use any of the Client Data in the manner set forth in (iii) or (iv) of the preceding sentence. To the
extent that applicable law requires any permissions or authorizations to have been obtained prior to submission of
Client Data to Innovative (including without limitation from individuals to whom the data pertains), Client warrants
and covenants that it (and its Authorized Users, as applicable) will have first obtained the same permissions or
authorizations prior to transmitting such data to Innovative. Client will defend, indemnify and hold harmless
Innovative in the event of any third-party claim arising from a breach of the aforesaid warranty and covenant.
4. Fees; Expenses; Payment Terms.
a. In consideration of receiving a limited license to use the Software, Client will pay the fees set forth in the
Pricing Exhibit to the License Agreement (the ÐFeesÑ) on the terms set forth therein. Initial invoicing under this
Agreement will occur when the Software is initially delivered to Client per Section 2; subsequent renewal invoices
will be sent to Client prior to the date such payment is due. Invoices for any Renewal Terms may be provided to
Client up to 90 days prior to the effective date of such Renewal Term. Client will notify Innovative in writing if Client
hereafter requires additional Authorized Users or additional Software modules, and will pay the fees for such
additional Authorized Users or additional Software modules in accordance with the terms set forth on the invoice
for such fees. The Software may, from time to time, electronically transmit to Innovative reports verifying the type
and number of Authorized Users, and Innovative may utilize license keys or other reasonable controls to enforce
Authorized User license limitations. Client will cooperate with Innovative in all such efforts.
b. Fees for additional Third-Party Software, hardware and services are subject to change and will be quoted
at the then current rate.
c. All Fees are exclusive of all taxes and similar fees now in force or enacted in the future or imposed on the
delivery and license of the Software, all of which Client will be responsible for and will pay in full, other than taxes
based on InnovativeÓs net income. Client will provide Innovative its state issued Direct Pay Exemption Certificate
(or equivalent certificate), if applicable, upon execution of this Agreement. In the event an applicable taxing
authority, as a result of an audit or otherwise, assesses additional taxes for goods or services sold under this
Agreement at any time, Client and not Innovative will be solely responsible for payment of such additional taxes
and all costs associated with such assessment, including without limitation, interest, penalties and attorneyÓs fees.
Additionally, should Client be required under any applicable law or regulation, domestic or foreign, to withhold or
deduct any portion of the payments due to Innovative hereunder, then the sum due to Innovative will be increased
by the amount necessary to yield to Innovative an amount equal to the sum Innovative would have received had no
withholdings or deductions been made.
d. Where this Agreement establishes a due date for a payment and/or a recurring method for payment,
payment will be due and payable on such due date and/or according to the method specified. Other fees or
expenses charged pursuant to this Agreement will be paid at the amounts set forth in the invoice within 30 (thirty)
days of the date of the invoice. All amounts stated herein and all Fees determined hereunder are in U.S. Dollars,
unless otherwise required by applicable law.
e. Any invoices not paid when due will accrue interest at the rate of 1% per month or the maximum rate
permitted by law, whichever is greater.
5. Limited Warranty.
a. Innovative warrants, solely for the benefit of Client, that:
i. It has the corporate power and authority to enter into this Agreement and to grant Client the license to
the Software hereunder; and
ii. The Software will conform in all material respects to the applicable technical documentation for the
Software provided to Client by Innovative and expressly identified by Innovative as the specifications for
the Software (collectively, the "Specifications").
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR (i) THE WARRANTIES
EXPRESSLY STATED ABOVE IN THIS SECTION AND (ii) ANY WARRANTY, REPRESENTATION OR
CONDITION TO THE EXTENT THE SAME CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW,
INNOVATIVE AND ITS LICENSORS, AFFILIATES, AGENTS, SUBCONTRACTORS AND SUPPLIERS MAKE NO
REPRESENTATIONS OR WARRANTIES, AND EXPRESSLY DISCLAIM AND EXCLUDE ANY AND ALL
WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, WHETHER
ARISING BY OR UNDER STATUTE, COMMON LAW, CUSTOM, USAGE, COURSE OF PERFORMANCE OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. WITHOUT LIMITING THE
FOREGOING, INNOVATIVE AND ITS LICENSORS, AFFILIATES, AGENTS, SUBCONTRACTORS AND
SUPPLIERS DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY,
THAT THE SOFTWARE OR OTHER DELIVERABLES PROVIDED BY OR ON BEHALF OF INNOVATIVE WILL
SATISFY CLIENT'S REQUIREMENTS OR THAT THEIR USE OR OPERATION WILL BE ERROR OR DEFECT-
FREE OR UNINTERRUPTED OR AVAILABLE ON THE INTERNET, OR THAT ALL PRODUCT DEFECTS WILL
BE CORRECTED. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 5(a), THE SOFTWARE,
INCLUDING ALL CONTENT, IS PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT ANY GUARANTEES
REGARDING QUALITY, PERFORMANCE, SUITABILITY, TIMELINESS, SECURITY, DURABILITY,
INTEGRABILITY OR ACCURACY, AND CLIENT ACCEPTS THE ENTIRE RISK OF AND RESPONSIBILITY FOR
SELECTION, USE, QUALITY, PERFORMANCE, SUITABILITY AND RESULTS OF USE THEREOF, INCLUDING
ALL CONTENT GENERATED THROUGH USE THEREOF.
c. As the exclusive remedy of Client for a breach of the limited warranties set forth in Section 5, for any error
or other defect for which Innovative is solely responsible, Innovative will, at its option, either (i) correct or repair the
Software, or (ii) accept termination of this Agreement and refund the unused balance of any prepaid Fees for the
Software, prorated for the period commencing on the date the error or defect was reported by Client to Innovative
and continuing throughout the balance of the period to which such Fees apply. None of the above warranties or
remedies in this Section 5 will apply with respect to any Software that has been damaged or modified by any party
other than Innovative, or used in a manner for which the Software is not designed or intended.
6. LIMITATIONS ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT WILL INNOVATIVE BE LIABLE FOR LOST PROFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL,
INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES WHATSOEVER,
EVEN IF INNOVATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THEY WERE
OTHERWISE FORESEEABLE. INNOVATIVEÓS TOTAL LIABILITY FOR TORT, CONTRACT AND OTHER
DAMAGES WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO INNOVATIVE BY CLIENT UNDER
THIS AGREEMENT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH
A CLAIM IS FIRST ASSERTED AGAINST INNOVATIVE. INNOVATIVE WILL NOT BE LIABLE FOR ANY CLAIM
OR DEMAND AGAINST CLIENT BY ANY THIRD PARTY EXCEPT FOR THE INDEMNIFICATION SET FORTH IN
SECTION 7. THESE LIMITATIONS OF LIABILITY WILL APPLY TO ALL CLAIMS AGAINST INNOVATIVE IN THE
AGGREGATE (NOT PER INCIDENT) AND TOGETHER WITH THE DISCLAIMER OF WARRANTIES ABOVE
WILL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT.
7. Indemnification.
a. If a third party files a legal action in a court of competent jurisdiction against Client claiming the Software,
as delivered to Client by Innovative, directly infringes such third partyÓs U.S. copyright or U.S. patent, Innovative will
defend Client against such legal action, provided that Client promptly notifies Innovative in writing of the legal action
and fully cooperates with Innovative in the defense of such legal action. Innovative will also indemnify Client from
all damages and out-of-pocket costs (including reasonable attorneysÓ fees) finally awarded by a court of competent
jurisdiction in connection with any such legal action, or agreed to by Innovative in a settlement. Innovative will control
all aspects of the defense and conduct the defense and any settlement negotiations in any such third-party legal
action. This indemnification is limited to the Software in the form delivered to Client and does not cover claims
arising from (x) modifications thereto not made by Innovative, or, even if by Innovative, at the request of Client; (y)
use of the Software in combination with other software or items not provided by Innovative, or (z) third party
modifications (including addition of source code) to the Software.
b. As the exclusive remedy of Client under the limited indemnity set forth in Section 7.a, if the use of the
Software by Client is enjoined, Innovative will, at its sole option: (i) obtain for Client the right to continue to use the
Software, (ii) modify the Software to remove the cause of the legal action, (iii) replace the Software at no additional
charge to Client with a substantially similar, non-infringing product, which will then be subject to the provisions of
this Agreement, or (iv) terminate this Agreement and refund to Client that portion of the Fees allocable to the
infringing component of the Software, prorated for the period ClientÓs use of the Software is enjoined. None of the
above warranties or remedies will apply with respect to any element of the Software that has been modified by any
party other than Innovative, or used in a manner for which the Software is not designed or intended. This Section
states InnovativeÓs entire liability and ClientÓs exclusive remedies for infringement of intellectual property rights of
any kind.
8. Confidentiality.
a. Client acknowledges that all documentation, audit reports, technical information, software, Specifications
and other information pertaining to the Software, and/or Innovative's business interests or activities, product pricing,
financial information, methods of operation or customers that are disclosed by any party to Client in the course of
performing this Agreement or any ensuing business arrangement are the confidential and proprietary information
of Innovative. Innovative acknowledges that Client Data and other proprietary Client materials are the confidential
information of Client. The information and materials described in the preceding sentences is referred to herein as
"Confidential Information." Notwithstanding the foregoing, the term "Confidential Information" does not include
information pertaining to a party if (i) such information is generally known to the public through no improper action
or inaction by the other party, (ii) was, through no improper action or inaction by the other party, in the possession
of the other party prior to the Effective Date, or (iii) rightly disclosed to the other party by a third party if such
disclosure does not violate the terms of any confidentiality agreement or other restriction by which such third party
may be bound.
b. All Confidential Information will be held in confidence and may not be copied, used or disclosed other than
as set forth in this Agreement. Each party must take all reasonable efforts to protect the confidentiality of and prevent
the unauthorized use of any such Confidential Information by any third party within such party's control. Each party
may disclose Confidential Information (i) to the receiving party's employees and contractors required to have access
to such Confidential Information for the purposes of performing this Agreement or using the Software, provided
each party hereto notifies its employees and contractors accessing such Confidential Information of the
confidentiality obligations in this Section 8; or (ii) if such disclosure is in response to a valid order of any court,
statute, or other governmental body ("Order"), in which event, the disclosing party must use reasonable efforts to
provide the other party with prior notice of such Order, to the extent legally permitted to do so and in accordance
with the Order. Under no circumstances will Confidential Information received from Innovative be disclosed to any
competitor of Innovative without Innovative's advance written permission.
c. Recognizing any improper use or disclosure of any Confidential Information by either party may cause the
party whose Confidential Information is improperly used or disclosed irreparable damage for which other remedies
may be inadequate, a party whose Confidential Information is improperly used or disclosed will have the right to
petition for injunctive or other equitable relief from a court of competent jurisdiction as appropriate to prevent any
unauthorized use or disclosure of such Confidential Information.
d. If the parties have previously executed a nondisclosure agreement ("NDA"), any Confidential Information
exchanged pursuant to such NDA will remain confidential, and will as of the date of the execution of this Agreement
be deemed Confidential Information within the meaning of this Agreement and also be governed by the terms
hereof.
9. Term; Termination.
a. The term of the Agreement is set forth in the Pricing Exhibit to the License Agreement.
b. If either party hereto fails to perform or comply with any material term or condition of this Agreement,
specifically including ClientÓs failure to pay any Fees (such party being the ÐBreaching PartyÑ), and such failure
continues unremedied for 30 (thirty) days after receipt of written notice, the other party may terminate this
Agreement. Notwithstanding the foregoing, if the Breaching Party has in good faith commenced to remedy such
failure and such remedy cannot reasonably be completed within such 30-day period, then the Breaching Party will
have an additional 30 (thirty) days to complete such remedy, after which period the other party may terminate this
Agreement if such failure continues unremedied.
c. Client may terminate this Agreement at any time during the Initial Term effective as of the date of the next
annual anniversary of the Effective Date if ClientÓs budget (funding) is eliminated and Client provides written
evidence to Innovative of the elimination of ClientÓs budget (funding), such evidence to be in the form and substance
reasonably requested by Innovative.
d. Except for a termination by Client pursuant to Section 9.b., and unless as otherwise set forth in this
Agreement, upon any termination of this Agreement, all prepaid Fees will be nonrefundable and Client will be
responsible for all Fees and expenses for the Software provided prior to and as of the date of termination. Any
termination of this Agreement will not waive or otherwise adversely affect any other rights or remedies the
terminating party may have under the terms of this Agreement. Upon termination of this Agreement, the rights and
duties of the parties will terminate, other than the obligation of the Client to pay Fees and costs in accordance
herewith, and the obligations of the parties pursuant to Section 1.c. (Software License), Section 3 (Ownership),
Section 4 (Fees; Expenses; Payment Terms), Section 6 (Limitations on Liability), Section 7 (Indemnification),
Section 8 (Confidentiality), Sections 9.d. and 9.e. (Termination), Section 11 (Client Configurations) and Section 13
(General). Within 30 (thirty) days of receipt of a written request following a termination of this Agreement, each party
must return or destroy all Confidential Information of the other party, as requested in writing by the other party.
Notwithstanding the foregoing, a party will not be obligated to destroy data containing Confidential Information of
the other party when it would be commercially impracticable for the receiving party to do so (for example, when
Confidential Information is contained in e-mail stored on backup tapes or other archival media), but for so long as
such receiving party is in possession of such Confidential Information of the other party, the terms of Section 8
(Confidentiality) hereof will continue to restrict the receiving partyÓs use or disclosure of such Confidential
Information. Neither party will be liable to the other for any termination or expiration of this Agreement in accordance
with its terms.
e. Following termination of this Agreement, Innovative has no duty whatsoever to deliver to Client any parts
of its programming, data model, or any other information regarding which Innovative claims a proprietary or
Intellectual Property Right. To the extent that Innovative is requested to perform any services for Client in connection
with the termination of this Agreement (including without limitation providing Client with a copy of Client Data in a
commercially-standard format to be agreed upon by the Parties), such service will be performed pursuant to a
written statement of work under a separate professional services agreement and paid for by Client, applying
InnovativeÓs then-current rates for daily/hourly work, as the case may be.
10. Third Party Software. The Software may contain third-party and/or Ðopen sourceÑ code provided under
third-party license agreements. The terms and conditions of such third-party license agreements will apply to such
source code in lieu of these terms, where applicable, and Client is responsible for compliance therewith. A listing of
certain third-party and/or open source code contained in the Software, the respective license terms applicable to
such code, and certain related notices are included in the documentation and/or Specifications made available to
Client by Innovative. Except as required for the authorized use of the Software as contemplated herein, Client may
not use any name or trademark of any supplier of third party or open source code without such partyÓs prior written
authorization.
11. Client Configurations. Client will be permitted to use one or more application programming interfaces
(APIs) made available by Innovative to configure the Software hereunder in accordance with the Specifications
(such configurations or other modifications, ÐClient ConfigurationsÑ). Client will not use any other API to modify or
configure the Software. No API may be used to create any Client Configuration that, in whole or in part, mimics any
material functionality of any software or service developed or marketed by Innovative or that would reasonably be
deemed competitive to any software or service developed or marketed by Innovative if the Client Configuration were
to be released to the public market. Innovative disclaims all representations and warranties, express or implied,
regarding Client Configurations and assumes no liability whatsoever with respect to Client Configurations. Client
agrees to indemnify and hold harmless Innovative from all damages and out-of-pocket costs (including reasonable
attorney fees) for any third-party action based on a claim that any Client Configuration infringes a copyright or a
patent, or constitutes an unlawful disclosure, use or misappropriation of another party's trade secrets.
12. Back-Up Activities. Except to the extent that Client purchases InnovativeÓs hosting service or back-up
services, Client has the sole responsibility for the maintenance and protection of all data input into the Software,
including, without limitation, the making, storing and security of back-up and archive copies of such data and the
Software (collectively ÐBack-Up ActivitiesÑ), and Client acknowledges Innovative will not perform any Back-Up
Activities for or on behalf of Client.
13. Data Privacy. Innovative follows industry standard privacy practices, available at
.
https://www.iii.com/services-privacy-policy/
14. Security. Innovative holds the internationally-recognized ISO 27001:2013 standard for its information
security management system. Security and compliance is a shared responsibility between Innovative and the Client.
Innovative operates, manages and controls the components from the host operating system layer to the networking
layer, if Hosting is identified in the Pricing Exhibit. All physical security is managed by InnovativeÓs hosting partner.
The Client assumes shared responsibility and management of the Software. Client should take into consideration
the Client Configurations and any third-party application they choose and their responsibility depending on any
Innovative takes reasonable and appropriate administrative, technical and physical
applicable laws and regulations.
measures to protect the confidentiality, integrity and availability of ClientÓs sensitive information.
15. General.
a. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the
other party in the event of any breach hereunder will not be deemed a waiver by that party as to subsequent
enforcement of rights or subsequent actions in the event of future breaches.
b. Independent Contractor. Client acknowledges that Innovative is at all times an independent contractor and
that ClientÓs relationship with Innovativeis not one of principal and agent nor employer and employee.No Innovative
personnel will be entitled to participate in any compensation or benefits plan of Client.
c. Force Majeure. Neither party will be liable or responsible for any delay or failure in performance if such
delay or failure is caused in whole or in part by fire, flood, explosion, power outage, war, strike, embargo,
government regulation, civil or military authority, hurricanes, severe wind, rain, other acts of God, acts or omissions
of carriers, third-party local exchange and long distance carriers, utilities, Internet service providers, transmitters,
vandals, or hackers, or any other similar causes that may be beyond its control (a ÐForce Majeure EventÑ).
d.Notice. Any notice or communication required to be given by either party mustbe in writing and made by
hand delivery, express delivery service, overnight courier, electronic mail, or fax, to the party receiving such
communication. Unless otherwise instructed in writing, such notice will be sent to the parties at the addresses set
forth on the first page of the License Agreement. All communications pursuant to this Section will be deemed
delivered as follows: (a) upon receipt, if delivered personally or by a recognized express delivery or courier service;
or (b) when electronically confirmed, if delivered by facsimile.
e. Invalidity. Any provision of this Agreement which is invalid, illegal, or unenforceable in any jurisdiction will,
as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in
any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this
Agreement invalid, illegal, or unenforceable in any other jurisdiction.
f. Counterparts. This Agreement may be executed by the parties in separate counterparts by original, .pdf (or
similar format for scanned copies of documents) or facsimile signature, each of which when so executed and
delivered will be deemed an original, but all such counterparts will together constitute but one and the same
instrument.
g. Publicity. Except as provided in this Section, neither party will make any press release, public statement or
other disclosure regarding the terms of this Agreement without the prior written consent of the other party, which
consent will not be unreasonably withheld. Notwithstanding the foregoing, Innovative will have the right to issue
public statements pertaining to the existence of the business relationship between Innovative and Client, including
the right to limited use of ClientÓs name, logo and other reasonable non-confidential information in press releases,
web pages, advertisements, and other marketing materials.
h. Assignment. Neither party has the power to assign, license, or sub-license any of its rights or obligations
hereunder without the prior written consent of the other party, which will not be unreasonably withheld. Any
assignment, license, or sub-license attempted without such consent will be void. Notwithstanding the foregoing, a
party may assign this Agreement without the other partyÓs consent (i) as part of a corporate reorganization,
consolidation, merger, or sale of substantially all of its assets or capital stock; or (ii) to an Affiliate of such party
provided that any such assignment will not release the assigning party from its obligations under this Agreement.
i. Waiver of Jury Trial; Governing Language. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL IN CONNECTION WITH ANY DISPUTE OR LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT
OR THE SUBJECT MATTER HEREOF. This Agreement and all proceedings hereunder will be conducted in the
English language; any translation of this Agreement into another language will be for convenience only but will not
modify the meaning hereof. Only a written instrument duly executed by both parties may modify this Agreement.
j. Entire Agreement. This Agreement contains the entire understanding of the parties, and supersedes all
prior agreements and understandings relating to the subject matter hereof, provided that nothing herein will diminish
or affect any separate services agreement or statement(s) of work issued thereunder. The parties represent that
they are sophisticated commercial entities, have had the opportunity to consult with their own counsel, and have
included in this Agreement all terms material to the partiesÓ rights and obligations with respect to the subject matter
hereof and intend this document to be the final expression of their contractual intent. The parties further represent
and acknowledge that communications exchanged between the parties during contract negotiation (including,
without limitation, requests for proposal (ÐRFPsÑ) and InnovativeÓs responses to such RFPs; questionnaires and
responses to same, quotes) do not constitute a part of this Agreement. Purchase orders, work orders or other such
documents submitted by Client will be for ClientÓs internal administrative purposes only and the terms and conditions
contained in any such purchase order, work order or other such document will have no force or effect and will not
amend or modify this Agreement. In the event of any inconsistencies or conflicts among the GTCs, a License
Agreement or any other exhibits or schedules referenced by these GTCs, the following order of priority will control:
1. License Agreement, 2. GTCs and 3. any other terms, agreements, exhibits or schedules included in, or
referenced by the Agreement.
Exhibit C
Innovative Interfaces Incorporated
Maintenance and Support
Terms and Conditions
These Maintenance and Support Terms and Conditions (ÐSupport TermsÑ) apply to the License Agreement.
Unless otherwise specified, capitalized terms in these Support Terms have the same meaning as those in the GTCs.
The terms set forth herein supplement, but do not replace or modify, the GTCs.
1. Maintenance and Support. Innovative will offer maintenance and support on the terms set forth herein
(ÐMaintenance and SupportÑ) for the latest generally available version of the Software and for certain earlier versions
in accordance with InnovativeÓs support policy. Standard Maintenance and Support is included with the price for the
annual license set forth in the License Agreement.
2. Error Response. Error descriptions (each an ÐErrorÑ), the Error severity levels and corresponding targeted
response time per level are each described in the table below. The Targeted Response Times in the table below
identify the response times that Innovative will target for the corresponding Error, however, such Targeted
Response Times are not guaranteed.
Severity Description Target
Response Time
One - Site DownA major component of the software is in a non-responsive state 1 hour
and severely affects library productivity or operations. A high
impact problem that affects the entire library system. Widespread
system availability, production system is down
Two Î Critical Any component failure or loss of functionality not covered in 2 hours
Severity 1 that is hindering operations, such as, but not limited to:
excessively slow response time, functionality degradation; error
messages; backup problems; or issues affecting the use of the
module or the data
Three - High Lesser issues, questions, or items that minimally impact the work 2 business days;
flow or require a work around excludes
holidays and
weekends
Four Î RoutineIssues, questions, or items that donÓt impact the work flow. Issues 4 business days;
that can easily be scheduled such as an upgrade or patch excludes
holidays and
weekends
3. Error Reporting and Diagnosis.
a. Client must designate a representative as the contact that will report Errors to Innovative and be
InnovativeÓs primary contact for the provision of Maintenance and Support pursuant to the terms of this Agreement
(such representative is referred to herein as the ÐClient ContactÑ). When a Client Contact reports an Error, Innovative
will use commercially reasonable efforts to diagnose the root cause of the Error (ÐDiagnosisÑ). Upon completing the
Diagnosis, each Error will be classified as either a ÐWarranty ErrorÑ or a ÐNon-Warranty ErrorÑ pursuant to Section
3.b. below. Innovative will use commercially reasonable efforts to diagnose and repair both Warranty and Non-
Warranty Errors as described below.
b. ÐWarranty ErrorsÑ are all Errors that do not qualify as Non-Warranty Errors. ÐNon-Warranty ErrorsÑ
are Errors resulting from any of the following causes: (i) misuse, improper use, alteration or damage of the Software;
(ii) operator error; (iii) incorrect data entry by Client; (iv) third-party software not part of the Software; (v) errors
and/or limitations attributable to Client environment; (vi) ClientÓs failure to incorporate any New Release previously
provided to it by Innovative which corrects such Error; (vii) modification of the Software performed by Client; and
(viii) technical consulting services provided by Innovative at ClientÓs request (e.g., change orders, integration
development, or configuration design and implementation), unless Client notifies Innovative of such technical
consulting services problem within the applicable warranty period set forth in the governing statement of work,
change order or agreement. Client acknowledges that the Software is intended for use only with the software and
hardware described in the Specifications provided by Innovative from time to time, and Client will be solely
responsible for its adherence thereto.
c. If the Client is hosting their Software, the Client must provide direct network internet access to the
Software, including any firewalls. Innovative requires such access to correct Software bugs and carry out
modifications of the Software for the purpose of maintaining the Software.
4. Complimentary and Chargeable Support. Innovative will respond to all reported Errors pursuant to
Section 2 above and will use commercially reasonable efforts to resolve Warranty Errors at no additional charge if
Client has purchased and is current on its payment for Maintenance and Support; however, Innovative may charge
Client for such effort with respect to Non-Warranty Errors according to the following process: (i) When the Client
Contact reports any Error, prior to commencing the Diagnosis for the Error, Innovative will notify the Client Contact
that the Diagnosis and repair effort will be at no charge to Client unless the reported Error is determined to be a
Non-Warranty Error, in which case only the first two hours of Diagnosis will be at no charge; and (ii) Innovative will
then commence the Diagnosis unless instructed otherwise by the Client Contact. If more than two hours are required
for the Diagnosis of Non-Warranty Errors, then such additional Diagnosis hours will be charged to Client at
InnovativeÓs then-current rate for technical services. Once the Diagnosis is complete, the Client Contact will be
given the option of having Innovative proceed with repairing the Non-Warranty Error, and, if so requested, Innovative
will provide an estimate of the total cost for such effort. If agreed to by the Client Contact, Innovative will undertake
to repair the Non-Warranty Error and charge Client for the associated technical services performed.
5. Ticket Management and Escalation. Innovative manages all reported issues using a ticket management
system, and provides an Internet portal for Clients to report issues. Clients may review the status of issues reported
online. When an Error is either unresolved or not resolved in a timely fashion, the Client should contact Innovative
representatives pursuant to InnovativeÓs escalation policy made available on InnovativeÓs Internet portal.
Exhibit D
Innovative Interfaces Incorporated
Hosting Services
Terms and Conditions
These Hosting Services Terms and Conditions (ÐHosting TermsÑ) apply to the License Agreement if, and
only to the extent that, Hosting Services are identified on the Pricing Exhibit to the License Agreement as a
purchased service. Unless otherwise specified, capitalized terms in these Hosting Terms have the same meaning
as those in the GTCs. The terms set forth herein supplement, but do not replace or modify, the GTCs.
1. Hosting Services. The following terms apply for all purposes to ClientÓs license to and use of the
Software under the Agreement.
2. Hosting Solution. Innovative offers clients a standard cloud-based hosting option (the ÐStandard PlanÑ).
The table below sets forth the features of the Standard Plan. This option provides industry-leading security and
monitoring at a SOC 1/SOC 2 Type 2/ISO 27001-audited datacenter by a top-tier cloud hosting provider (the
ÐHosting ProviderÑ), with the flexibility to meet clientsÓ data storage, data recovery, and information security policy
requirements. To meet clientsÓ global hosting needs, Innovative offers hosting options in datacenters located in
the United States, Canada, United Kingdom, Ireland, Australia and the Asia-Pacific region, however, Innovative
reserves the right to increase, decrease and/or relocate its datacenters at anytime.
FeatureStandard
24x7 infrastructure monitoring
Dedicated production environment
99.9% guaranteed infrastructure uptime**
Dedicated public IP address and custom URL
Operating system installation and management
Library software installation and upgrades
Data backups Daily
Archive data backup retention 30 days
3. Hosting Solution System Configuration. The hosting systems are configured to meet the solution
requirements as per the Hosting Terms set forth on the Pricing Exhibit to the License Agreement.
4. Security Controls.
a. Generally. Subject to the terms of the Agreement, Innovative implements industry-recognized
best practices to prevent the unintended or malicious loss, destruction or alteration of ClientÓs data resident in the
Software.
etwork Systems Audit Logging. All firewall logon activity and password changes are logged,
b. N
monitored, controlled and audited. All intrusion detection and firewall log monitoring is done through services
provided by Innovative and those pertinent log files and configuration files are retained for ninety (90) days and
can be made available upon request for audit and problem resolution, as may be required.
c. Network Monitoring. All network systems and servers are monitored 24/7/365. Innovative will
monitor its systems for security breaches, violations and suspicious (questionable) activity. This includes
suspicious external activity (including, without limitation, unauthorized probes, scans or break-in attempts) and
suspicious internal activity (including, without limitation, unauthorized system administrator access, unauthorized
changes to its system or network, system or network misuse or program information theft or mishandling).
Innovative will notify Client as soon as reasonably possible of any known security breaches or suspicious
activities involving ClientÓs production data or environment, including, without limitation, unauthorized access and
service attacks, e.g., denial of service attacks.
d. Audit and Security Testing. Hosting Providers perform regular security audits and testing. ClientÓs
may not perform own audits of hosting providers.
e. Information Security Auditing/Compliance. InnovativeÓs hosting providers undergo SOC 1/SOC 2
Type 2/ISO 27001 audits each year by independent third-party audit firms.
f. **The 99.9% guaranteed infrastructure uptime is subject to the following Service Level Agreement
(SLA):
i. Hours of operation/exclusive remedy for service unavailability. Innovative offers a
monthly infrastructure uptime target of 99.9% of Scheduled Up-Time to Client. Scheduled Up-Time means all of
the time in a month that is not Scheduled Downtime or Third Party Unavailability. In the event that Innovative fails
to provide Client with 99.9% infrastructure uptime for three consecutive months, Client will be entitled to receive a
credit equal to the prorated amount of the Fees for the period in which Innovative failed to provide such
infrastructure uptime during such months upon receipt of written notice from Client. The remedies set forth in this
Paragraph (i) are the exclusive remedies of the Client for InnovativeÓs failure to provide Client with 99.9%
infrastructure uptime.
ii. Scheduled Downtime. Scheduled Downtime means the period of time which Innovative or
the Hosting Provider, conduct periodic scheduled system maintenance and release updates for which Innovative
will provide the Client with advance notice. Innovative will make commercially reasonable efforts to provide Client
notice of scheduled system maintenance 48 hours in advance and notice of release updates three weeks in
advance.
1
REPORT TO COUNTY COUNCIL
FROM:Amy Thomson, Director of Human
Resources
DATE:September 27, 2022
SUBJECT:New Human Resources Policy: 2.18
Electronic Monitoring of Employees at
Work
RECOMMENDATIONS:
THAT the report titled “New Human Resources Policy: 2.18 Electronic Monitoring of
Employees at Work” dated September 27, 2022 from the Director of Human Resources
be received and filed; and
THAT County Council approve Human Resources (HR)Policy: 2.18 Electronic Monitoring
of Employees at Work.
INTRODUCTION:
The Provincial government passed Bill 88, amendingthe “Working for Workers Act,
2021” on April 11, 2022, and “An Act to enact the Digital Platform Workers’ Rights Act,
2022”. This Billrequires that employers with more than 25 employees implement an
th
Electronic Monitoring policy, on or before October 11, 2022.
DISCUSSION:
HR Policy 2.18 Electronic Monitoringwas drafted by HR staff, utilizing resourcesand
advice from HR legal firms as well as internal legal advice. The creation of the draft
policy included review and feedback from theCounty’s Executive Leadership Team,
particularly with regard to identifying all relevant electronic monitoring capabilities and
their attendant purpose(s).
Information Technology Services(ITS)input was critical to the details contained within
the policy.
The legislation(Bill 88)mandates that employers have a transparent policywith respect
to electronic monitoringof employees in the workplace. Policies are to include a
description of how employers may electronically monitor their employees;
circumstances in which the employer may electronically monitor; and the purposes for
which information obtained may be used by the employer. The legislation does not
introduce any new employee rights, nor the right to not be subjected to electronic
2
monitoring.Further, the legislation does not differentiate between active and passive
electronic monitoring. Council will note that County staff have identified types of
electronic monitoring that are entirely passive in nature, but because of the wording of
the legislation ought to be included. An example of this type of passive monitoring is
County e-mail servers recording pertinent information of every e-mail sent and received.
This constitutes ‘electronic monitoring’ within the legislation, even though it is justthe
normal operation of an e-mail server.
The draft policy meets the legislated requirements of Bill 88. Once approved by Council,
the policy will be posted for all staff to review and acknowledge on or before October
th
11, 2022.
FINANCIAL IMPLICATIONS:
The policy does not have anyfinancial implications for the County.
ALIGNMENT WITH STRATEGIC PRIORITIES:
Serving ElginGrowing ElginInvesting in Elgin
Ensuring alignment of Planning for and Ensuring we have the
current programs and facilitating commercial, necessary tools,
services with community industrial, residential, resources, and
need.and agricultural growth.infrastructure to deliver
programs and services
now and in the future.
Exploring different Fostering a healthy
ways of addressing environment.
Delivering mandated
community need.
programs and services
Enhancing quality of
efficiently and
Engaging with our
place.
effectively.
community and other
stakeholders.
CONCLUSION:
Provincial legislation has been passed that requires employers to adopt a policy
pertaining to the electronic monitoring of employees in the workplace. Policy 2.18
ensures the County meets the requirements under Bill 88. Any amendments directed
by CountyCouncil will be incorporated into the draft policybefore beingimplemented
th
and communicated to staffon or before October 11, 2022 to meet legislated
Employment Standards Actrequirements.
3
All of which is Respectfully SubmittedApproved for Submission
Amy ThomsonJulie Gonyou
Director of Human ResourcesChief Administrative Officer
CountyofElgin
Human Resources Policy Manual
______________________________________________________________________
Subject: Electronic Monitoring of Employees at Work
Policy Number:2.180
Date Approved:September 27, 2022
th
Effective Date: October 11, 2022
Date Last Revision:September 27, 2022
Code: A
Section: 2
______________________________________________________________________
PURPOSE
The County is providing transparency toemployees with respect to electronic
monitoring capabilities and purposes, which may be utilized during the course of
employment.
This Policy should be read alongside the County’s relatedpolicies,including but not
limited to:
HR Policy 13.10 – Acceptable Use Policy for Computer Equipment, Software,
Internet Access and Internet E-mail
HR Policy 13.20 – Technology Entitlement Policy
Administration Policy 1.6Social Media Policy
Administration Policy 3.0Audio / Video Surveillance Policy
Any relevant and applicable legislationsuch as the Employment Standards Act,
2000(“ESA”), including the amendments to the ESA arising from the Working for
Workers Act, 2021, Bill 88, and the Occupational Health and Safety Act
Applicable Collective Agreement articlesfor CUPE, SEIU and ONA
Any other policy that may become applicable and/or relevant.
SCOPE
This policy applies to all Employees ofthe County,whether they are working onsite,
remotely, or through an approved flexible work arrangement.
CountyofElgin
Human Resources Policy Manual
______________________________________________________________________
DEFINITIONS
Electronic Monitoringrefers to all forms of employee monitoring that is doneusing
electronic means.
Some examples (not specific to Elgin County) include, where an employer uses GPS to
track the movement of an employee’s delivery vehicle; or uses an electronic sensor to
track employee productivity; or tracks websites that employees visit during working
hours.
Employee has the same definition as “employee” in section 1(1) of the ESA.
POLICY
The County uses various electronic monitoring tools in different circumstances and for
different purposes as described in Appendix “A” to this policy.
The County utilizes tools that are able to both actively and passively monitor employee
activity. The majority of the County’s electronic monitoring is done passively, through
the creation of electronic records by employees in the normal course of fulfilling their
employment duties.
Information gathered via the Electronic Monitoring activities described in Appendix “A”
may be used for employment-related purposes including, but not limited to, purposes
such as assessingproductivity, in the investigation of alleged violations of law,
regulations, or applicable County policies, procedures and expectations, or other
instances of misconductor concerns related to health, safety and security.
The County may also audit Electronic Monitoring information at any time, subject to
limitations imposed by contracts of employment, collective agreements or applicable
law.
The result of electronic monitoring may lead to discipline, up to and including
termination of employment, if warrantedin the circumstances.
The County values employee privacy and its use of information obtained from electronic
monitoring tools for employment-related or disciplinary purposes is discretionary, and is
subject to any rights an employee may otherwise have per their employment contract,
collective agreement or otherwise at law. This policy does not create any new privacy
rights for employees or a right to not be electronically monitored. Nothing in this policy
affects or limits the County’s ability to use information obtained through electronic
monitoring, subject to applicable law.
The County reserves the right to monitor Information Technology assets and services
belonging to the County to ensure secure, effective, and appropriate use. Employees
should not have an expectation of privacy as it relates to their usage of County
Information Technology or the location of County assets, including laptops and mobile
devices.
CountyofElgin
Human Resources Policy Manual
______________________________________________________________________
Employer Obligations
The County may reasonably utilize Electronic Monitoringfor any valid business
purpose.The County will continue to be transparent with employees with respect to any
electronic monitoring capabilities, as technology evolves.
Employeeelectronic monitoringdata is made available to a limited number of
authorized representatives, or third parties associated with the County, andis restricted
based on requirements for legitimate business purposes. Information access is on an
as-needed basis and will comply with related policies, confidentiality and security
requirements.
Employee Obligations
Employees of the County of Elgin should always ensure they are working within the
policies of the County, including policies related to use of County technology, such as e-
mail, web-browsers and mobile devices.
When unsure, employees are encouraged to ask their supervisor or a Human
Resources representative for instruction or clarification on appropriate usage.
Posting, Notice and Retention
The County shall provide a copy of this Policy to each employee within 30 calendar
days of implementation. Should any changes be made to the Policy after its
implementation, the County shall provide each employee a copy of the revised Policy
within 30 days of the changes being made.
The County shall provide a copy of this Policy to all new employees upon onboarding
and within 30 calendar days of the employee commencing employment with the County.
The County shall retain a copy of this and any revised version of this Policy for three
years after it ceases to be in effect.
The County may amend this Policy from time to time in its sole discretion. If the County
amends this policy, it will provide an amended copy of the Policy to employees within
thirty (30) days of the changes being made.
CountyofElgin
Human Resources Policy Manual
______________________________________________________________________
APPENDIX ‘A’
Electronic Circumstances How Electronic Purpose(s) for
Monitoring in which Monitoring which the
ToolElectronic Occurscollected
Monitoring information
May Occurmay be used*
Physical Key FOBs, At any time An electronic Authenticating
Securityaccess cards,during usesensor creates a entry into
alarm panels, record each time buildings;
cards, etc., with an authorized user security of
electronic scans the key fob premises;
functionality(etc.) and enters a verification of
County facility or attendance;
part thereof;
CCTV Video ContinuousCameras record Physical
Camera video footage of security;
Systems specific areas employee and
within the County’s resident security
facilities and (LTCHs);
properties, investigations;
including the parking
administration enforcement;
building and long-
term care homes
Location At any time Mobile Device Locating
Tracking during use Management corporate
(Laptops, Software tracks assets; Health
Mobile location of devices;and safety
Devices) (assisting in
locating
employee);
CountyofElgin
Human Resources Policy Manual
______________________________________________________________________
Electronic Circumstances How Electronic Purpose(s) for
Monitoring in which Monitoring which the
ToolElectronic Occurscollected
Monitoring information
May Occurmay be used*
Network Firewalls, ContinuousNetwork security Network
SecurityVirtual Private programs and tools security;
Networks (VPN) monitor use and
/ Web Gatewayaccess of County
systems and
networks;
IT security ContinuousSoftware tracks Network
software / and triggers events security;
cybersecurity forsuspicious or
prevention toolsrisky use activity
(e.g. quarantining
and preventing
suspicious e-mail);
Wi-Fi Access At any time Records Network
Pointsduring usemaintained security;
regarding access to
WiFi access point
including device,
user, time, duration
of use;
Network At any time Create records of Network
Serversduring useall e-mails sent and security;
received, all
electronic records
created and saved,
all websites
accessed,
information details
regarding when,
how, from what ID,
from what device,
etc. Where an e-
mail is quarantined,
ITS and authorized
managers can read
content of e-mail;
CountyofElgin
Human Resources Policy Manual
______________________________________________________________________
Electronic Circumstances How Electronic Purpose(s) for
Monitoring in which Monitoring which the
ToolElectronic Occurscollected
Monitoring information
May Occurmay be used*
SoftwareMobile Device ContinuousSoftware monitors Track user
Management and creates activity
Softwarerecords of serial
number of device,
provider
information,
operating system,
applications
installed, WiFi
History;
Team ViewerAt any time Authorized user of Track User
during useTeam Viewer can Activity
see in real-time all
usage on a mobile
device;
*All electronic monitoring information may be used for employment-related or
disciplinary purposes as set out in this policy
1
REPORT TO COUNTY COUNCIL
FROM:Nicholas Loeb, Senior Counsel
Brian Lima, General Manager
Engineering, Planning, and Enterprise
(EPE)/ Deputy CAO
DATE: September 16, 2022
SUBJECT:Elgin (County) / FU Fiber Inc. -
Telecommunications Equipment
Consent and Road User Agreement
RECOMMENDATIONS:
It is recommended that:
1.The within Report to Council, dated September 16, 2022, and entitled ÐElgin
(County) / FU FiberInc. Î Telecommunications Equipment Consent and Road
User AgreementÑ be received and filed;
2.County Council approve and authorize the Warden and Chief Administrative
Officer to execute a proposed Telecommunication Equipment Consent and Road
User Agreement as between Elgin (County) and FU FiberInc. substantially in the
form and of the content attached.
INTRODUCTION:
The purpose of this Report to Council is to seek approval and authorization for
execution of a proposed Telecommunication Equipment Consent and Road User
Agreement (ÐTelecommunication AgreementÑ) between Elgin (County) and FU Fiber
Inc.
BACKGROUND AND DISCUSSION:
FU Fiber Inc. is atelecommunication service providerproposing to construct fiber-optic
installations, in part located within County Road Allowances, to establish and/or improve
telecommunication services within unserved or poorly serviced areas in Elgin County.
On May 24, 2022, County Council approved an amended standard formof
Telecommunications Agreement, in respect of all future proposed fiber-optic installation
projects.
2
The agreement attached to this report to council conforms to the standard form
approved by Council on May 24, 2022.
Th
e proposed Agreement will apply to all future FU Fiber Inc. infrastructure installed
within the County Road Allowances for the duration of the term of the Agreementand
any renewals.
FINANCIAL IMPLICATIONS:
As between Elgin and FU Fiber Inc., the Telecommunication Agreement establishesthe
framework for completion of installation projects in County Road Allowances, including
financial arrangements and more specifically including fee and permit structures and
performance security, the latter to generally address costs of completion and/or
restoration should project works not be completed by FU Fiber Inc.
ALIGNMENT WITH STRATEGIC PRIORITIES:
Serving ElginGrowing ElginInvesting in Elgin
Planning for and
Ensuring alignment ofEnsuring we have the
facilitating commercial,
current programs andnecessary tools,
industrial, residential, and
services with communityresources, and
agricultural growth.
need.infrastructure to deliver
programs and services
now and in the future.
Fostering a healthy
Exploring different ways
environment.
of addressing community
Delivering mandated
need.
programs and services
Enhancing quality of
efficiently and effectively.
Engaging with our
place.
community and other
stakeholders.
Additional Comments: None
LOCAL MUNICIPAL PARTNER IMPACT:
None.
COMMUNICATION REQUIREMENTS:
None
3
CONCLUSION:
Staff presents a proposed Telecommunication Agreement with FU Fiber Inc.. This
proposed Telecommunication Agreement conforms with thestandardformat approved
by Council on May 24, 2022.
All of which is Respectfully Submitted Approved for Submission
Julie Gonyou
Prepared By:
Chief Administrative Officer
Nicholas Loeb,
Senior Counsel
Reviewed By:
Brian Lima, General Manager
Engineering, Planning, and Enterprise
(EPE)/ Deputy CAO
TELECOMMUNICATIONS EQUIPMENT CONSENT and ROAD
USER AGREEMENT
This Agreement made effective the day of , 2022 (the
Ð Effective Date Ñ).
B E T W E E N:
CORPORATION OF THE COUNTY OF ELGIN
(hereafter the "County")
OF THE FIRST PART
-and Î
FU FIBER INC.
(hereafter the "Company")
OF THE SECOND PART
WHEREAS:
A.The Company is a ÐCanadian carrierÑ as defined in the Telecommunications Act, S.C.
1993, c.38 (Ð Telecom Act Ñ) or Ðdistribution undertakingÑ as defined in the
Broadcasting Act, S.C. 1991, c.11 (collectively, a Ð Carrier Ñ) and is subject to the
jurisdiction of the Canadian Radio-television and Telecommunications Commission
(the Ð CRTC Ñ);
B.In order to operate as a Carrier, the Company requires to construct, maintain and operate
its Equipment in, on, over, under, across or along (Ð Within Ñ) the highways, streets,
road allowances, lanes, bridges or viaducts which are under the jurisdiction of the
County (collectively, the Ð Rights-of-Way Ñ or Ð ROWs Ñ);
C.Pursuant to section 43 of the Telecom Act, the Company requires the CountyÓs consent
to construct its Equipment Within the ROWs and the County is willing to grant the
Company a non-exclusive right to construct within the ROWs provided that it shall not
unduly interfere with the public use and enjoyment of the ROW or other public place,
including any rights or privileges previously conferred or conferred after the Effective
date by the County on Third Parties to use or access the ROWs;
NOW THEREFORE in consideration of the mutual terms, conditions and covenants contained
herein, the Parties agree and covenant with each other as follows:
1.DEFINITIONS AND INTERPRETATION
1.1 Definitions. In this Agreement, the following words and phrases shall have the following
meanings:
(a)Ð Affiliate Ñ means ÐaffiliateÑ as defined in the Canada Business Corporations Act;
(b)ÐAnti-Bribery LawÑ means any anti-bribery law or international convention, as
may apply now or in the future, including the Canadian Corruption of Foreign
Public Officials Act, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act
and the OECD Convention on Combating Bribery of Foreign Public Officials;
(c)Ð County Engineer Ñ means the CountyÓs reviewing authority or the individual
designated by him or her;
2
(d) ÐCRTCÑ means the Canadian Radio-television and Telecommunications
Commission.
(e) Ð Emergency Ñ means an unforeseen situation where immediate action must be
taken to preserve the environment, public health, safety or an essential service of
either of the Parties;
(f) Ð Equipment Ñ means the transmission and distribution facilities owned by the
Company and/or its Affiliates, comprising fibre optic, coaxial or other nature or
form of cables, pipes, conduits, poles, ducts, manholes, handholds and ancillary
structures and equipment located Within the ROWs;
(g) Ð Hazardous Substance Ñ means any harmful substance including, without
limitation, electromagnetic or other radiation, contaminants, pollutants, dangerous
substances, dangerous goods and toxic substances, as defined, judicially interpreted
or identified in any applicable law (including the common law);
(h) Ð Municipal Consent Ñ or Ð MC Ñ means the written consent of the County, with or
without conditions, to allow the Company to perform Work Within the ROWs that
requires the excavation or breaking up of the ROWs (as more particularly described
in Schedule ÐBÑ to this Agreement);
(i) ÐNon-Compliant EquipmentÑ means:
(i) For all Equipment installed on or after the Effective Date, Equipment that
is not compliant with the alignment approved by the County because the
placement of the Equipment is greater than a distance of 1m horizontally or
vertically from the location approved by the County, and, the placement of
such Equipment has a material impact on the CountyÓs ability to manage or
use its ROWs; or,
(ii) Equipment installed prior to the Effective Date of this Agreement is
assumed to be compliant. However, Equipment installed prior to the
Effective Date may be deemed Non-Compliant by the County if unapproved
deviations from the approved alignment have a material impact on the
CountyÓs ability to manage or use its ROWs; or,
(iii) Equipment that is not compliant with other requirements of this Agreement.
(j) Ð Permit Ñ means a Municipal Consent or a Road Permit or both;
(k) Ð Relocation NoticeÑ means a written notice given by the County to the Company
identifying the specific location and reason for the relocation and directing the
Company to relocate the Equipment designated in the notice to another reasonable
location in the ROW(s).
(l) ÐRoad PermitÑ meansa Permit issued by the County that, generally, is required to
authorize the Company to conduct Work that includes any activity that involves a
deployment of its workforce, vehicles and other equipment in the ROWs which may
interfere with the public use and enjoyment of the ROW for the duration of the Work
when performing theWork.(as more particularly described in Schedule ÐBÑ to this
Agreement);
(m) Ð Service Drop Ñ means a cable that, by its design, capacity and relationship to other
fibre optic cables of the Company can be reasonably considered to be for the sole
purpose of connecting backbone of the Equipment to not more than one individual
customer or building point of presence;
(n) ÐTermÑ means subject to the renewal options described in subparagraph 9.1(a) and
termination described in subparagraphs 9.2, 9.3 and 9.4, the Term of this
Agreement as commencing on, _____ day of ___, 2022 and expiring and
terminating on, ____ day of ____, 2027.
(o) Ð Third Party Ñ means any person that is not a party to this Agreement nor an
Affiliate of either Party, and includes any person that attaches its facilities in, on or
to the Equipment under an agreement with the Company;
(p) Ð Work Ñ means, but is not limited to, any installation, removal, construction,
maintenance, repair, replacement, relocation, removal, operation, adjustment or
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other alteration of the Equipment performed by the Company Within the ROWs,
including the excavation, repair and restoration of the ROWs.
1.2 Legislation. All references to statutes in this Agreement shall include amendments thereto,
regulations thereof, and successor legislation thereafter.
1.3 Recitals, Schedules and Incorporated Documents. The beginning part of this Agreement
entitled ÐRecitalsÑ, Schedule ÐAÑ as identified below, and the By-laws and Municipal
Policies referred to in this Agreement are hereby incorporated by reference into this
Agreement and form part thereof:
Schedule ÐAÑ Î Permit Fees
Schedule ÐBÑ Î Permits required by the County
2. USE OF ROWs
2.1 Consent to use ROWs. The County hereby consents to the CompanyÓs use of the ROWs
for the purpose of performing its Work, subject to the terms and conditions of this
Agreement and in accordance with all applicable laws or other municipal by-laws, rules,
policies, standards and guidelines (Ð Municipal Guidelines Ñ) pertaining to the Equipment
and the use of the ROWs; to the extent, however, that any municipal laws and the Municipal
Guidelines are not inconsistent or in conflict with this Agreement or with applicable federal
laws.
2.2 Restrictions on use. The Company shall not, in the exercise of its rights under this
Agreement, unduly interfere with municipal operations, equipment or installations and the
public use and enjoyment of the ROWs, nor any rights or privileges previously conferred
or conferred after the Effective Date by the County on Third Parties to use or access the
ROWs
2.3 Equipment acquired by the Company. The Parties agree that, where the Company
acquires, or hasacquired,directly or indirectly, facilities from a Third Party that are located
Within the ROWs (the Ð New Equipment Ñ), then, effective the day of the acquisition of
the New Equipment by the Company:
(a) the New Equipment shall form part of the Equipment and shall be governed by the
terms and conditions of this Agreement; and
(b) where that Third Party is a Party to a valid and existing Road User Agreement with
the County (the Ð RUA Ñ) and the Company, directly or indirectly, acquires the rights
and obligations under the said RUA, the RUA shall be terminated.
2.4 No ownership rights. The Parties acknowledge and agree that:
(a) the use of the ROWs under this Agreement shall not create nor vest in the Company
any ownership or property rights in the ROWs; and
(b) the placement of the Equipment Within the ROWs shall not create or vest in the
County any ownership or property rights to the Equipment.
2.5 Condition of ROWs. The County makes no representations or warranties as to the state of
repair of the ROWs or the suitability or fitness of the ROWs for any business, activity or
purpose whatsoever, and the Company hereby agrees to accept the ROWs on an Ðas isÑ
basis.
2.6 Non-Compliant Equipment. The County bears no liability or responsibility for relocation
costs of all of the following:
(a) Non-Compliant Equipment;
(b) Third Party telecommunications equipment attached to the CompanyÓs Non-
Compliant Equipment; and
(c) any damages, liabilities, re-design costs and associated delay costs incurred by
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other occupiers of a County ROW resulting from the CompanyÓs Non-Compliant
Equipment.
If the County identifies the existence of Non-Compliant Equipment, the County will issue
a Notice of Non-Compliance to the Company. If the County requires the Non-Compliant
Equipment to be relocated, the County will send a Relocation Notice to the Company
requesting relocation of the Non-Compliant Equipment and the Company must relocate
the Equipment as follows:
(i) above ground Equipment must be relocated within 90 days of the Company
receiving a Relocation Notice from the County;
(ii) below ground Equipment must be relocated within 180 days of the Company
receiving a Relocation Notice from the County, such Relocation Notice to be issued
by the County only in the event the County approves plans to re-open the site where
the Non-Compliant Equipment is located;
Prior to removal or relocation of Non-Compliant Equipment, the Company must obtain a
new alignment approval from the County.
If the Company fails to remove or relocate Non-Compliant Equipment as a result of
receiving a Relocation Notice from the County, the County may, in its sole and unfettered
discretion, complete the removal or relocation and any associated restoration and the
Company must pay to the County all reasonable and verifiable costs related to the
relocation and restoration.
3. APPLICABLE PERMITS
3.1 Permits.
(a) Subject to Section 3.2 and 3.4, the Company shall not occupy, excavate, break up,
disturb, or move oversized or overweight vehicles within a County ROW, where a
Permit is required in accordance with this Agreement and Schedule ÐBÑ, without
first obtaining such Permit.
(b) For each Permit required above, where applicable, the Company shall submit to the
County a completed application, in a form specified by the County and including
all Fees in effect throughout the Term as set out in Schedule ÐAÑ to this Agreement
as well as any Security required under this Agreement.
3.2 No Permits for routine Work. Notwithstanding Section 3.1, the Company may, with
advance notice as required by the County, without first obtaining a Permit:
(a) utilize existing ducts or similar structures of the Equipment with at least twenty-
four (24) hours advance notice to the County;
(b) carry out routine maintenance and field testing to its Equipment; and
(c) install and repair Service Drops;
provided that in no case shall the Company break up or otherwise disturb the physical hard
surface of the ROW without the CountyÓs prior written consent.
3.3 Expiry of Permit. In the event that the Company has not commenced construction of the
approved Work associated with a particular Permit within one (1) year of the date of
issuance of the Permit and has not sought and received an extension to the Permit from the
County, which extension shall not be unreasonably withheld, the Permit shall be null and
void. In such circumstances, any fees paid by the Company in respect of the expired Permit
shall not be refunded and the Company must obtain a new Permit for the Work.
3.4 Submission of plans. Unless otherwise agreed to by the County, the Company shall, prior
to undertaking any Work that requires a Municipal Consent, submit the following to the
County Engineer:
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(a) construction plans of the proposed Work, showing the locations of the proposed
and existing Equipment and other facilities, and specifying the boundaries of the
area within the County within which the Work is proposed to take place;
(b) Traffic control plans for the protection of the workers, public and traveling public
including detours as required to minimize traffic disruption; and
(c) all other relevant plans, drawings and other information as may be normally
required by the County Engineer from time to time for the purposes of issuing
Permits.
3.5 Refusal to issue Permits. The County may refuse to issue a Permit in accordance with
Section 3.1 for any bona fide municipal purpose, including but not limited to reasons of
public safety and health, conflicts with existing infrastructure, proposed road construction,
or the proper functioning of public services, all as identified in writing by the County,
having regard to the public interest in having access to communications, including 911
access services. The County shall make good faith effort to provide consent to alternative
suggestions, wherever possible, for routing the Equipment Within the ROW to assist the
Company in its efforts to facilitate the installation of its Equipment.
3.6 Restoration of the CompanyÓs service during Emergencies. Notwithstanding Section
3.1, in the event of an Emergency, the Company shall be permitted to perform such
remedial Work as is reasonably necessary to restore its services without complying with
Section 3.1; provided that such Work does not unduly disrupt any Municipal service or
activity and provided that the Company does comply with Section 3.1 within five (5)
business days of completing the Work.
3.7 Temporary changes by County. Notwithstanding any other provision in this Agreement,
the County reserves the right to set, adjust or change the approved schedule of Work by the
Company for the purpose of coordinating or managing any major events or activities,
including the restriction of any Work during those restricted time periods; provided
however, that any such adjustment or change shall be conducted so as minimize
interruption to the CompanyÓs operations. The County shall use its commercially
reasonable efforts to provide to the Company forty-eight (48) hours advance written notice
of any change to the approved schedule of Work, except that, in the case of any Emergency,
the County shall provide such advance notice as is reasonably possible in the
circumstances.
3.8 Granting of Permit Deemed as Municipal Consent Required Pursuant to the
Telecommunications Act (Canada). The County agrees and acknowledges that, subject
to satisfaction and performance of all terms and conditions both hereto and provided herein
and the granting and issuance of any Roads Permit authorizing installation of Equipment
as contemplated by this Agreement and in relation to a location specified therein shall be
considered and deemed to represent municipal consent to such installation and use thereof
as is required pursuant to applicable laws of the Dominion of Canada, including but not
limited to the Telecommunications Act, S.C. 1993, c. 38, as amended.
4. MANNER OF WORK
4.1 Compliance with Applicable Laws, etc. All Work shall be conducted and completed to
the satisfaction of the County and in accordance with:
(a) the applicable laws (and, in particular, all laws and codes relating to occupational
health and safety);
(b) the Municipal Guidelines;
(c) this Agreement; and
(d) the applicable Permits issued under Section 3.1.
provided that the applicable laws, Municipal Guidelines, this Agreement, and applicable
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Permits do not conflict with federal law.
4.2 Underground Equipment. The Company shall place those portions of the Equipment that
cross beneath streets or existing buried utilities in ducts, carrier pipes or encased in
concrete, or as otherwise specified by the County. Service drops are not required to be in
ducts.
4.3 Installation. The Company shall utilize construction methods that minimize the impact on
the ROWs, including but not limited to trenchless installation technology and single trench
installation methods.
4.4 Stoppage of Work. The County may order the stoppage of the Work for any bona fide
municipal purpose or cause relating to public health and safety, special events or any
circumstances beyond its control. In such circumstances, the County shall provide the
Company with a verbal order and reasons to stop the Work and the Company shall cease
the Work immediately. Within two (2) business days of the verbal order, the County shall
provide the Company with a written stop work order with reasons. When the reasons for
the Work stoppage have been resolved, the County shall advise the Company immediately
that it can commence the Work.
4.5 Coordination of Work. To minimize the necessity for road cuts, construction and the
placement of new Equipment Within the ROW, the Company shall, where commercially
reasonable and technically practicable, coordinate its work with other existing and new
occupants of the ROW.
4.6 Identification of contractors. The Company shall ensure that all of its contractors have
proper identification visible on the Work site displaying the name of the Company for
which they work.
4.7 Emergency contact personnel. The Company and the County shall provide to each other
a list of twenty-four (24) hour emergencycontact personnel available at all times and shall
ensure that the list is kept current.
4.8 Emergency work by County. In the event of an Emergency, the County may take such
measures it deems necessary to re-establish a safe environment, and the Company shall
pay the CountyÓs reasonable and verifiable costs that are directly attributable to the Work or the
presence of the Equipment in the ROWs.
4.9 ÐAs-builtÑ drawings. The Company shall, no later than ninety (90) days after completion
of any Work, provide the County Engineer with accurate Ðas-builtÑ drawings, prepared in
accordance with such standards as may be required by the County Engineer, sufficient, for
planning purposes, to accurately establish the location of the Equipment installed Within
the ROWs. As-built drawings to be provided in electronic format suitable to be
incorporated into the CountyÓs GIS mapping. As-built information is provided a reference
only. The County shall direct all inquiries regarding the location of the Equipment to the
Company. Access to Company As-Built records are for use by the County only and shall
not be distributed or disclosed to other parties without prior written consent of the
Company. If the County has not received the As-built drawings from the Company within
90 calendar days following the completion of the Work, the Equipment will be considered
to be Non-Compliant Equipment.
4.10 Agents and Sub-contractors. Each Party agrees to work with the other Party directly to
resolve any issues arising from any the acts, omissions or performance of its agents and
sub-contractors.
5. REMEDIAL WORK
5.1 General. Following the completion of any Work, the Company shall leave the ROW in a
neat, clean, and safe condition and free from nuisance, all to the satisfaction of the County.
Subject to Section 5.5, where the Company is required to break or disturb the surface of a
ROW to perform its Work, it shall repair and restore the disturbed surface of the ROW to
the same or better condition it was in before the Work was undertaken, all in accordance
with the Municipal Guidelines and to the satisfaction of the County.
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5.2 Permanent Road Restoration. If the Company has excavated, broken up or otherwise
disturbed the surface of a ROW, the Company shall restore the ROW which the Company
has excavated, broken up or otherwise disturbed to a similar state that it was in prior to the
commencement of the Work.
5.3 Temporaryrepair. Where weather limitations or other external conditions beyond the
control of the Company do not permit it to complete a final repair to the ROW within the
expected period of time, the Company may complete a temporary repair to the ROW;
provided that, subject to Section 5.5, the Company replaces the temporary repair with a
final repair within a reasonable period of time. All repairs to the ROW by the Company
shall be performed in accordance with the Municipal Guidelines and to the satisfaction of
the County.
If a temporary repair gives rise to an unsafe condition, then this shall be deemed to
constitute an Emergency and the provisions of Section 4.8 shall apply.
5.4 Warranty of repairs. The Company warrants its temporary repair, to the satisfaction of
the County until such time as the final repair is completed by the Company, or, where the
County is performing the final repair, for a period of one (1) years or until such time as the
final repair is completed by the County, whichever is earlier. The Company shall warrant
its final repairs for a period of two (2) years from the date of their completion
5.5 Repairs completed by County. Where:
(a) the Company fails to complete a temporary repair to the satisfaction of the County
within seventy-two (72) hours of being notified in writing by the County, or such
other period as may be agreed to by the Parties; or
(b) the Company and the County agree that the County should perform the repair,
then the County may effect such work necessary to perform the repair and the Company
shall pay the CountyÓs reasonable and verifiable direct costs of performing the repair.
6. LOCATING FACILITIES IN ROWs
6.1. Locates. The Company agrees that, throughout the Term it shall, at its own cost, record
and maintain adequate records of the locations of its Equipment. Each Party shall, at its
own cost and at the request of the other Party (or its contractors or authorized agents),
physically locate its respective facilities by marking the ROW using paint, staking or other
suitable identification method (Ð Locates Ñ), under the following circumstances:
(a) in the event of an Emergency, within two hours of receiving the request or as soon
as practicably possible, following which the requesting Party will ensure that it has
a representative on site (or alternatively, provide a contact number for its
representative) to ensure that the area for the Locates is properly identified; and
(b) in all other circumstances, within a time reasonably agreed upon by the Parties.
6.2. Provision of Mark-ups. The Parties agree to respond within fifteen (15) days to any
request from the other Party for a mark-up of municipal infrastructure or Equipment design
drawings showing the location of any portion of the municipal infrastructure or Equipment,
as the case may be, located within the portion of the ROWs shown on the plans (the Ð Mark-
ups Ñ), and shall provide such accurate and detailed information as may be reasonably
required by the requesting Party.
6.3. Inaccurate Locates. Where the CompanyÓs Locates are found to be in error, where the
actual location of the Equipment is found to be beyond 1 meter horizontally on either side
of the Locates, and, as a result, the County is unable to install its facilities Within the
affected ROWs in the manner it expected based on the Locates provided by the Company
(the ÐErrorÑ), the County will notify the Company of the Error, following which the
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Company shall attempt to resolve the Error. If the Company is unable to resolve the Error
in a reasonable time commensurate with the situation, the Company will pay the County
for its reasonable and verifiable costs incurred as a direct result of the Error. An Inaccurate
Locate resulting from Equipment relocated due to ground movement stemming from,
among other things, weather conditions or work or activities carried out by a Third Party,
or by, or on behalf of, the County, is not an Error. In the event of a disagreement as to the
existence of an Error, the parties agree to work together to determine whether or not the
Error stems from ground movement or work or activities carried out by a Third Party, or
by, or on behalf of, the County. If it is determined that the conditions of the municipal
right-of-way have changed, the parties agree to be reasonable, including with respect to the
allocation of direct costs stemming from the change.
7. RELOCATION OF EQUIPMENT
7.1 County Request. Where the County requires and requests the Company to relocate its
Equipment for a bona fide municipal purpose, the County shall notify the Company in
writing and, the Company shall complete the requested relocation within ninety (90) days,
having regard to the nature of the relocation required, the Company shall commence work
to relocate its Equipment within a Right- of-Way.
7.2 Allocation of Cost. The responsibility for the costs incurred in relocating the CompanyÓs
Equipment or performing such work referenced, where the County has made a request to
the Company to relocate its Equipment as set out above will, for the purposes of this
Agreement, be based upon the following chart and include all associated costs (labour,
materials, design etc.) as well as depreciation, betterment and recovery of costs:
Year(s) After Percentage of
Relocation
Installation of
Costs Paid
Equipment
by the Municipality
1100%
2 100%
3 100%
4 90%
5 80%
6 70%
7 65%
8 60%
9 55%
10 45%
11 40%
12 35%
13 30%
14 20%
15 10%
16 5%
17+ 0%
7.3 Exceptions.
(a) Notwithstanding section 7.2, the County shall be solely responsible for paying all
costs related to equipment relocation if the relocation is for beautification or
aesthetic purposes. Such costs include, among others, depreciation, betterment, and
recovery costs.
(b)Notwithstanding section 7.2, where the County has given written notice to the
Company prior to the issuance of a Road Permit that the location of the Equipment
subject to the Road Permit will require relocation within five (5) years, and the
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Company proceeds to install the equipment despite receiving such notice, then the
full cost of any relocation of the Equipment shall be at the CompanyÓs sole expense.
7.4 Upon Request of the Company. In the event that the Company wishes to relocate
Equipment which has been previously installed in accordance with this Agreement at its
own expense, the Company shall notify the County of such request, in writing, and such
request will thereafter be considered and administered by the County acting reasonably and
with diligence giving due consideration to the scope of the works already undertaken by
the Company Within the ROWs, provided that, in considering and administering such
request the County shall be entitled to take into consideration any specific municipal or
engineering interests affected by such relocation including any additional facilities located
Within the ROWs. Notwithstanding the foregoing, the County shall not be permitted to
unreasonably withhold, delay or condition its approval for such request.
7.5 Request by Third Party. Where relocation of Equipment is required due to the County
accommodating a third party (hereinafter "Third Party Work"), the required relocation
or related installation work shall be conducted by the Company in accordance with the
terms of this Agreement respecting installation, and the full cost of the amendment or
Relocation shall be borne solely by the third party and paid in advance. The County agrees
to provide the Company with ninety (90) days' notice of the need for any such Third Party
Work and to require that the relevant third party or parties bear the full cost of such Third
Party Work and indemnify the Company against all claims and liabilities arising from the
amendment or Relocation as a condition precedent to any such amendment or Relocation.
7.6 County efforts. Where any relocation of Equipment occurs, the County will make good
faith efforts to provide alternative routes for the Equipment affected by the relocation to
ensure uninterrupted service to the CompanyÓs customers. Once the Company has provided
the County with all information the County requires to enable it to process a Permit
application, the County shall provide, on a timely basis, all Permits required to allow the
Company to relocate the Equipment.
7.7 Temporary Reconstruction or Realignment of Road Allowances. The Company shall,
upon reasonable prior notice to the County, have the right to:
(a) temporarily reconstruct or realign certain portions of the RoadAllowances in order
to permit the delivery or movement of Equipment.
8. PAYMENT OF FEES AND OTHER CHARGES
8.1 General. The Company covenants and agrees to pay to the County Permit fees, deposits
and security associated with and required or reasonably demanded pursuant to this
Agreement. The Permit fees and charges and security are set out in this Agreement and in
Schedule ÐAÑ to this Agreement.
8.2 Fees. The Company covenants and agrees to pay to the County applicable fees as laid out in
Schedule ÐAÑ (ÐFees and ChargesÑ).
8.3 Invoices. Unless expressly provided elsewhere in this Agreement, where there are any
payments to be made under this Agreement, the Party requesting payment shall first send
a written invoice to the other Party, setting out in detail all amounts owing, including any
applicable provincial and federal taxes and interest payable on prior overdue invoices, and
the payment terms. The Parties agree that all payments shall be made in full by no later
than forty-five (45) days after the date of the invoice was received.
8.4 Default. Any failure or refusal by the Company to pay any required Fee or Charge as set
out in Schedule ÐAÑ, any cost required by this Agreement or deliver any Security required
under this Agreement within the timelines specified herein shall constitute a default
(ÐDefaultÑ). Upon the occurrence of a Default, the County shall deliver a Notice of Default
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in writing to the Company. The Company shall have thirty (30) days to cure the Default
(the ÐCure PeriodÑ). In the event that the Default is not cured within the Cure Period, then
the County shall have the right to draw upon the Blanket Security described in section 10.7
of this Agreement.
8.5 Payment of taxes. The Company shall pay, and shall expressly indemnify and hold the
County harmless from, all taxes lawfully imposed now or in the future by the County, a
local municipality within the geographic jurisdiction of the County, or all taxes, rates,
duties, levies or fees lawfully imposed now or in the future by any regional, provincial,
federal, parliamentary or other governmental body, corporate authority, agency or
commission (including, without limitation, school boards and utility commissions) but
excluding the County, that are attributable to the CompanyÓs use of a County ROW.
9. TERM AND TERMINATION
9.1 Initial term and renewal. Subject to the renewal options described in subparagraph 9.1(a)
and termination described in subparagraphs 9.2, 9.3 and 9.4, the Term of this Agreement
shall commence on _____ day of ______ 2022 and expire and terminate due to expiry on
_____ day of _____, 2027 (the Ð InitialTerm Ñ).
(a) The Company in its sole discretion may renew this Agreement with the County for
three (3) separate consecutive renewal terms of five (5) years each. To exercise the
first option to renew, the Company must provide the County written notice of such
election to renew prior to the expiry of the Initial Term, failing which the
Agreement will terminate due to expiry. To exercise the second option to renew,
the Company must provide the County written notice of such election to renew
prior to the expiry of the first valid five-year extension, failing which the Agreement
will terminate due to expiry. To exercise the third option to renew, the Company
must provide the County written notice of such election to renew prior to the expiry
of the second valid five-year extension, failing which the Agreement will terminate
due to expiry.
(b)If a renewal is not exercised prior to the last day of the Initial Term or valid
extension, this Agreement shall terminate immediately on the last day of the Term
or valid extension, subject to paragraph 9.4 of this Agreement.
9.2 Termination by either Party. Either Party may terminate this Agreement without further
obligation to the other Party, upon providing at least seven (7) daysÓ written notice in the
event of a material breach of this Agreement by the other Party after notice thereof and
failure of the other Party to remedy or cure the breach within thirty (30) days of receipt of
the notice. If, however, in the view of the non-breaching Party, it is not possible to remedy
or cure the breach within such thirty (30) day period, then the breaching Party shall
commence to remedy or cure the breach within such thirty (30) day period and shall
complete the remedy or cure within the time period stipulated in writing by the non-
breaching Party.
9.3 Termination by County. The County may terminate this Agreement by providing the
Company with at least seven (7) days written notice in the event that:
(a) the Company becomes insolvent, makes an assignment for the benefit of its
creditors, has a liquidator, receiver or trustee in bankruptcy appointed for it or
becomes voluntarily subject as a debtor to the provisions of the CompaniesÓ
Creditors Arrangement Act or the Bankruptcy and Insolvency Act;
(b) the Company assigns or transfers this Agreement or any part thereof other than in
accordance with Section 18.2; or
(c) the Company ceases to be eligible to operate as a Carrier.
9.4 Obligations and rights upon termination or expiry of Agreement. Notwithstanding
any other provision of this Agreement, if this Agreement is terminated (other than in
accordance with Section 9.3) or expires without renewal, then, subject to the CompanyÓs
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rights to use the ROWs pursuant to the Telecom Act and, unless the Company advises the
County in writing that it no longer requires the use of the Equipment:
(a) the terms and conditions of this Agreement shall remain in full force and effect until
a new replacement agreement (a ÐNew AgreementÑ) is executed by the Parties; and
(b) the Parties shall enter into meaningful and good faith negotiations to execute a New
Agreement and, if, after six (6) months following the expiry of this Agreement, the
Parties are unable to execute a New Agreement, then either Party may apply to the
CRTC to establish the terms and conditions of the New Agreement.
9.5 Removing abandoned Equipment. Where the Company advises the County in writing
that it no longer requires the use of any Equipment, the Company shall, at the CountyÓs
request and within a reasonable period of time as agreed to by the Parties, act as follows at
the CompanyÓs sole cost and expense:
(a) Remove the abandoned Equipment that is above ground;
(b) Subject to (c) immediately below, make safe any underground vaults, manholes and
any other underground structures that are not occupied or used by a Third Party,
(collectively Ð Abandoned Underground Structures Ñ);
(c) Where, in the reasonable opinion of the County Engineer, the Abandoned
Underground Structures will interfere with any municipally-approved project that
will require excavation or otherwise disturb the portions of the ROWs in which the
Abandoned Underground Structures are located, then the Company shall, at or
about the time the excavation of such portions of the ROWs for said project
commences, remove the Abandoned Underground Structures therein.
Upon removal of the abandoned Equipment or upon the removal or making safe of
Abandoned Underground Structures, the Company shall repair any damage resulting from
such removal or making safe and restore the affectedROWs to the condition in which they
existed prior to the removal or making safe. If the Company fails to remove Equipment or
to remove or make safe Abandoned Underground Structures and restore the ROWs within
the time specified above, and to the satisfaction of the County Engineer, the County may
complete said work and the Company shall pay the associated CountyÓs Costs.
9.6 Continuing obligations. Notwithstanding the expiry or earlier termination of this
Agreement, each Party shall continue to be liable to the other Party for all payments due
and obligations incurred hereunder prior to the date of such expiry or termination.
10. INSURANCE AND SECURITY
10.1 General. Throughout the term of this Agreement and any renewals or extension thereto,
the Company shall maintain, at its sole expense, insurance (the Ð Company Insurance Ñ) in
an amount and description as described below to protect the Company and the County from
claims for damages, bodily injury (including death) and property damage which may arise
from the CompanyÓs operations under this Agreement, including the use or maintenance
of the Equipment Within the ROWs or any act or omission of the Company and its
employees, contractors and agents while engaged in the Work. The Company Insurance
shall include all costs, charges and expenses reasonably incurred with any injury or
damage.
10.2 Commercial general liability occurrence-based insurance. Without limiting the
generality of the foregoing, the Company shall obtain and maintain commercial general
liability occurrence-based insurance coverage which:
(a) covers claims and expenses for liability for personal injury, bodily injury and
property damage in an amount not less than Five Million Dollars ($5,000,000.00)
per occurrence (exclusive of interest and costs);
(b) extends to cover the contractual obligations of the Company as stated within this
Agreement;
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(c) include the County as an additional insured;
(d) contains cross liability and severability of interest clauses.
10.3 Insurance certificates. As soon as possible after the execution of this Agreement, the
Company shall provide on the CountyÓs standard form, the County with certificates of
insurance in respect of the Company Insurance evidencing the cross liability and
severability clauses and confirming the County as an Ðadditional insuredÑ. Thereafter, the
Company shall provide the County with evidence of all renewals of the Company Insurance
in a form acceptable to the County.
10.4 General insurance conditions.
(a) The Company Insurance shall not be construed to, and shall in no manner, limit or
restrict the CompanyÓs liability or obligations under this Agreement.
(b) The County shall not be liable for any premiums relating to policies under the
Company Insurance.
(c) The policies under the Company Insurance shall provide:
(i) that they are primary insurance which will not call into contribution any
other insurance available to the County;
(ii) a waiver for severability of interest; and
(iii) that the Company Insurance shall not be cancelled, lapsed or materially
changed to the detriment of the County without at least thirty (30) business
daysÓ notice to the County by mail.
(d) The Company will immediately notify the County of any changes to or cancellation
of the Company Insurance if they will directly affect or reduce the coverage made
available to the County.
10.5 Workplace Safety and Insurance Board. The Company shall provide Workplace Safety
and Insurance Board (ÐWSIB)Ñ clearance certificate that confirms the Company is in good
standing with the WSIB. The Company shall ensure the WSIB clearance remains in effect
when the CompanyÓs personnel are working within the ROWs.
10.6 Blanket Letter of Credit. If requested by the County, the Company shall, within thirty (30)
days thereafter, post an irrevocable blanket letter of credit, for the minimum amount of ten
thousand dollars ($10,000.00) (the ÐBlanket SecurityÑ). Once posted by the Company,
the County may draw upon the Blanket Security and apply the funds therein against any
undisputed outstanding financial obligations owed by the Company to the County under
this Agreement.
10.7 Blanket Security - Term. The Blanket Security, if requested, shall be posted for a
maximum of up to three (3) years and until such time as the County determines that the
Company has established a satisfactory business relationship with the County. If the County
is required to draw upon the Blanket Security, the County shall advise the Company and
the Company shall, within fourteen (14) days thereafter restore the Blanket Security to its
original value.
10.8 Project-specific Security. The County may also reasonably request, and the Company
shall provide, additional project-specific securities for Work projects in an amount equal to
the estimated restoration costs of the projects as determined by the Parties. The County shall
release the project-specific securityonce the Company has fulfilled the conditions of the
applicable Permit relating to the restoration of the ROW to the satisfaction of the County.
11. RESPONSIBILITY AND INDEMNIFICATION
11.1 No liability County. The Company hereby acknowledges that the placement, installation,
construction, reconstruction, inspection, maintenance, operation, alteration, enlarging,
repair, replacement, relocation and/or removal of the Equipment by the Company is
performed entirely at the risk of the Company and that the County shall in no way or under
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any circumstances be responsible or liable to the Company, its contractors, agents, or
customers for any damage or losses in consequence thereof, unless due to the negligence
of the County or those for whom at law it is responsible.
11.2 Company Indemnity. The Company hereby releases, indemnifies, completely holds
harmless, and agrees to defend the County, its Councillors, officers, employees, legal
counsel, agents and contractors, from and against any and all suits, judgments, claims,
demands, expenses, actions, causes of action, duties, assessments, fees, penalties,
liabilities, losses and costs which the County and its successors and assigns may at any
time or times hereafter bear, sustain, or suffer, as a result of the Equipment, including
without limitation, its placement, installation, construction, reconstruction, inspection,
maintenance, use, operation, alteration, enlarging, repair, replacement, relocation and/or
removal.
11.3 County Acknowledgement. The County hereby acknowledges that it is responsible for its
negligence and the negligence of those for whom it is responsible for at law.
11.4 County Indemnity. The County hereby releases, indemnifies, completely holds harmless,
and agrees to defend the Company, its officers, employees, legal counsel, agents and
contractors, from and against any and all suits, judgments, claims, demands, expenses,
actions, causes of action, duties, assessments, fees, penalties, liabilities, losses and costs
which the Company and its successors and assigns may at any time or times hereafter bear,
sustain, suffer, be put to or incur by reason of its negligence and the negligence of those
for whom it is responsible at law.
11.5 No liability, both Parties. Notwithstanding any other provision in this Agreement, neither
Party shall be liable to any person in any way for special, incidental, indirect, consequential,
exemplary, or punitive damages, including damages for pure economic loss or failure to
realize expected profits, howsoever caused, or contributed to, in connection with this
Agreement and the performance or non-performance of its obligations hereunder
11.6 Survival. The obligation of a Party to indemnify, defend and save harmless the other Party
shall survive the termination or expiry of this Agreement.
12. ENVIRONMENTAL LIABILITY
12.1. County not responsible. The County is not responsible, either directly or indirectly, for
any damage to the natural environment or property, including any nuisance, trespass,
negligence, or injury to any person, howsoever caused, arising from the presence, deposit,
escape, discharge, leak, spill or release of any Hazardous Substance in connection with the
CompanyÓs occupation or use of the ROWs, unless such damage was caused directly or
indirectly by the negligence or willful misconduct of the County or those for which it is
responsible in law.
12.2. Company to assume environmental liabilities. The Company agrees to assume all
environmental liabilities, claims, fines, penalties, obligations, costs or expenses whatsoever
relating to its use of the ROWs, including, without limitation, any liability for the clean-
up, removal or remediation of any Hazardous Substance on or under the ROWs that result
from:
(a) the occupation, operations or activities of the Company, its contractors, agents or
employees or by any person with the express or implied consent of the Company
Within the ROWs; or
(b) any Equipment brought or placed Within the ROWs by the Company, its
contractors, agents or employees or by any person with the express or implied
consent of the Company;
unless such damage was caused directly or indirectly in whole or in part by the negligence
or willful misconduct on the part of the County or those for which it is responsible in law.
The County agrees to provide notice to the Company of any liability arising under this
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provision in a reasonable period of time after the occurrence. For clarity, the Company
shall not be liable in any manner for any events which occurred before the Equipment
occupied the ROW.
13. NO JOINT VENTURE, PARTNERSHIP OR CO-OWNERSHIP
13.1 No Joint Venture. The Parties hereby acknowledge and agree that this Agreement is solely
an access agreement and that no relationship is formed between the Parties in the nature of
a joint venture, partnership co-ownership arrangement or other similar relationship.
14. FORCE MAJEURE
14.1 Force Majeure. Except for the PartiesÓ obligations to make payments to each other under
this Agreement, neither Party shall be liable for a delay in its performance or its failure to
perform hereunder due to causes beyond its reasonable control, including, but not limited
to, acts of God, fire, flood, or other catastrophes; government, legal or statutory restrictions
on forms of commercial activity; or order of any civil or military authority; national
emergencies, insurrections, riots or wars or strikes, lock-outs or work stoppages (Ð Force
Majeure Ñ). In the event of any one or more of the foregoing occurrences, notice shall be
given by the Party unable to perform to the other Party and the Party unable to perform
shall be permitted to delay its performance for so long as the occurrence continues. Should
the suspension of obligations due to Force Majeure exceed two (2) months, either Party
may terminate this Agreement without liability upon delivery of notice to the other Party.
15. DISPUTE RESOLUTION
15.1 General. The Parties hereby acknowledge and agree that:
(a) this Agreement has been entered into voluntarily by the Parties with the intention
that is shall be final and binding on the Parties until it is terminated or expires in
accordance with its terms;
(b) it is the intention of the Parties that all Disputes (as defined in subsection 15.2) be
resolved in a fair, efficient, and timely manner without incurring undue expense
and, wherever possible, without the intervention of the CRTC; and
(c) the CRTC shall be requested by the Parties to consider and provide a decision
only with respect to those matters which form the basis of the original Dispute as
set out in the Dispute Notice issued under this Section 15.
15.2 Resolution of Disputes. The Parties will attempt to resolve any dispute, controversy, claim
or alleged breach arising out of or in connection with this Agreement (Ð Dispute Ñ) promptly
through discussions at the operational level. In the event a resolution is not achieved, the
disputing Party shall provide the other Party with written notice of the Dispute and the
Parties shall attempt to resolve such Dispute between senior officers who have the authority
to settle the Dispute. All negotiations conducted by such officers shall be confidential and
shall be treated as compromise and settlement negotiations. If the Parties fail to resolve the
Dispute within thirty (30) days of the non-disputing PartyÓs receipt of written notice, the
Parties agree to utilize the services of a mutually agreed upon independent third party
mediator. The mediator shall be knowledgeable regarding the area of the disputed issue.
The mediator shall meet with the Parties together or separately, as necessary, to review all
aspects of the issue. In a final attempt to assist the parties in resolving the issue themselves
prior to proceeding to legal proceedings and/or the CRTC, the mediator shall provide,
without prejudice, a non-binding written recommendation for settlement, within thirty (30)
days of holding a mediation. Upon receipt of the written settlement recommendation, if an
agreement cannot be reached, either Party may initiate legal proceedings and/or submit the
Dispute to the CRTC for resolution.
15.3 Continued performance. Except where clearly prevented by the nature of the Dispute, the
County and the Company agree to continue performing their respective obligations under
this Agreement while a Dispute is subject to the terms of this Section 15.
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16. NOTICE
16.1 Method of Notice. Any notice required may be sufficiently given by personal delivery or,
if other than the delivery of an original document, by facsimile transmission or electronic (e-
mail) transmission, to either Party at the following addresses:
To the County:
Corporation of the County Elgin
450 Sunset Drive
St. Thomas, Ontario N5R 5V1
To the Company:
Fu Fiber Inc.
1876 Avalon Street
London, ON, N5W 3G8
dan@fufiber.com
16.2 Delivery of Notice. Any notice given pursuant to Section 16.1 shall be deemed to have
been received on the date on which it was delivered in person, or, if transmitted by facsimile
or electronic transmission during the regular business hours of the Party receiving the
notice, on the date it was transmitted, or, if transmitted by facsimile outside regular
business hours of the Party receiving the notice, on the next regular business day of the
Party receiving the notice; provided, however, that either Party may change its address
and/or facsimile number for purposes of receipt of any such communication by giving ten
(10) daysÓ prior written notice of such change to the other Party in the manner described
above.
17. FOREIGN CORRUPT PRACTICES ACT AND ANTI-BRIBERY INDEMNITY
17.1 Notwithstanding anything to the contrary herein, the County, in its administration of this
Agreement, shall refrain from offering, giving or promising, directly or indirectly, money
or anything of value to a Canadian or foreign governmental official to influence the official
in his or her official capacity, induce the official to do or omit to do an act in violation of
his or her lawful duty, or to secure any improper advantage in order to assist in obtaining
or retaining business for or with, or directing business to, any person. For the purposes of
this Section, "anything of value" includes, but is not limited to, cash or a cash equivalent,
discounts, gifts, use of materials, facilities or equipment, entertainment, drinks, meals,
transportation, lodging, insurance benefits, or promise of future employment.
"Governmental official" shall mean any person holding any level of legislative,
administrative, or judicial office of the Canadian or a foreign government or any of its
departments or agencies or divisions; any person acting on behalf of the Canadian or a
foreign government, including a local or provincial agency, enterprise, or organization; any
official or agent of a Canadian or a foreign public administration or publicly funded
organization; any official of a Canadian or a foreign political party; any officer or agent of
a public international organization (e.g., World Bank, International Monetary Fund, World
Health Organization, United Nations, World Trade Organization); or any relatives or close
family/household members of any of those listed above. The County shall indemnify and
hold harmless the Company from all claims brought against the Company as a result of the
County or its representatives' failure to comply with Anti-Bribery Law. The County shall
immediately report any breach of Anti-Bribery Law by the County or its representatives.
The County shall immediately report any breach of Anti-Bribery Law by the County or its
representatives'. The Company shall have the right to audit the CountyÓs books and records with
respect to payments made on behalf of the Company in the event that the Company believes that
the County has violated this Section 17. The Company shall have the right to immediately terminate
all payments to the County under this Agreement if the County fails to comply with this Section 17.
18. GENERAL
18.1 Entire Agreement. This Agreement, together with the Schedules attached hereto,
constitute the complete and exclusive statement of the understandings between the Parties
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with respect to the rights and obligations hereunder and supersedes all proposals and prior
agreements, oral or written, between the Parties.
18.2 Assignment. This Agreement may not be assigned or transferred, in whole or in part,
without the prior written consent of the other Party. Notwithstanding the foregoing, the
Company shall, provided that it is not in material breach of this Agreement, have the right
to assign this Agreement to an Affiliate without the consent of the County, provided that
the Company has given notice to the County.
18.3 Gender and number. In this Agreement, words importing the singular include the plural
and vice versa, words importing gender, include all genders.
18.4 Currency. Unless otherwise indicated, references in this Agreement to money amounts are
to the lawful currency of Canada.
18.5 Parties to act reasonably. Each Party shall at all times act reasonably in the performance
of its obligations and the exercise of its rights and discretion under this Agreement.
18.6 Amendments. Except as expressly provided in this Agreement, no modification of or
amendment to this Agreement shall be effective unless agreed to in writing by the County
and the Company.
18.7 Survival. The terms and conditions contained in this Agreement that by their sense and
context are intended to survive the performance thereof by the Parties hereto shall so
survive the completion of performance, the expiration and termination of this Agreement,
including, without limitation, provisions with respect to indemnification and the making of
any and all payments due hereunder.
18.8 Waiver. Failure by either Party to exercise any of its rights, powers or remedies hereunder
or its delay to do so shall not constitute a waiver of those rights, powers or remedies. The
single or partial exercise of a right, power or remedy shall not prevent its subsequent
exercise or the exercise of any other right, power or remedy.
18.9 Severability. If any provision of this Agreement is determined to be invalid or
unenforceable in whole or in part, such invalidity or unenforceability shall attach only to
such provision and everything else in this Agreement shall continue in full force and effect.
18.10 Enurement. This Agreement is and shall be binding upon and inure to the benefit of the
Parties hereto and their respective legal representatives, successors, andpermitted assigns,
and may not be changed or modified except in writing, duly signed by the Parties hereto.
18.11 Counterparts: This Agreement may be executed by the Parties and delivered by facsimile
or PDF transmission and in one or more counterparts which when held together shall be
considered one and the same Agreement.
18.12 Equitable Relief. Either Party may, in addition to any other remedies it may have at law
or equity, seek equitable relief, including without limitation, injunctive relief, and specific
performance to enforce its rights or the other partyÓs obligations under this Agreement.
18.13 Governing law. This Agreement shall be governed by the laws of the Province of Ontario
and all federal laws of Canada applicable therein.
\[ONE (1) ENDORSEMENT PAGE FOLLOWS\]
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IN WITNESS WHEREOF this Agreement has been executedby the Parties hereto on the date(s)
set out below and the Parties agree that this Agreement shall be effective on the date as set out at
the top of page one (1) of this Agreement.
SIGNED, SEALED AND DELIVERED
CORPORATION OF THE COUNTY OF
ELGIN
in the presence of:
Date: ,
Mary French, Warden
Date:
Julie Gonyou, Chief Administrative Officer
We have the authority to bind the Corporation
SIGNED, SEALED AND DELIVERED
FU FIBER INC.
in the presence of:
Date: ,
Per: Dan Brow
Title: CEO
Date: ,
Per:
Title:
I/We have the authority to bind the Corporation
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SCHEDULE "A"
Fees and Charges
Telecommunication Equipment Consent and Road User Agreement
By-Law Fee/ChargeAmount
21-16 Municipal Consent $200.00 + $0.25/m
21-16 Road Permit $200.00 to $400.00
SCHEDULE "B"
Permits required by the County
Telecommunication Equipment Consent and Road User Agreement
MCNotification No Permit or
WORK ACTIVITY RP
only Notification
Road occupation that causes no disruption to traffic or
X
pedestrian flow to perform Work
Work that requires oversize or overweight vehicles X
Road Occupancy that involves the temporary closure of a
X
vehicle travel lane, parking lane to perform Work
Emergency Work with no Excavation, no utilization of trees and
X
or other municipal infrastructure as a support structure
1
Any installation of Equipment that requires Excavation in the
ROW, including:
the installation of buried Equipment crossing a road;
the installation of new Above-ground Plant;
the relocation of buried Equipment or Above-ground
X X
Equipment;
the replacement of existing Above-ground Equipment with
equipment that is significantly larger; and
the installation of buried Service Drops that cross a road or
a break a hard surface of the ROW.
The installation of aerial Equipment (excluding aerial Service
X
Drops)
Tree trimming on ROWs X
The replacement of existing above-ground Equipment without
adding more Equipment or significantly increasing its size (pole X
replacements excluded)
The installation of buried Service Drops that do not cross a road
X
or break the hard surface of a ROW
Pulling cable through existing underground duct X
The installation of or repair to aerial Service Drops X
The maintenance, testing and repair of Equipment where there
X
is minimal physical disturbance or changes to the ROW
Any other Work activity agreed to by the Municipality X
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REPORT TO COUNTY COUNCIL
FROM:Brian Lima, General Manager of
Engineering, Planning, & Enterprise (EPE) / Deputy
CAO
DATE:August 12, 2022
SUBJECT:Official Plan Amendment No. 5 to the
Official Plan of the Municipality of Dutton Dunwich
File No.: DDOPA22-05
Applicant: Municipality of Dutton Dunwich
RECOMMENDATIONS:
THAT the Council of the Corporation of the County of Elgin approves Official Plan
Amendment No.5to the Municipality of Dutton DunwichOfficial Plan; and
THAT staff be directed to provide notice of this decision in accordance with the Planning
Act.
INTRODUCTION:
The Council of the Municipality of Dutton Dunwich has adopted an amendment to their
official plan, known as Official Plan Amendment (OPA) #5and they have subsequently
forwarded the amendment to the County of Elgin for approval(see attachment). In
accordance with Section 17 of the Planning Act, Elgin Countyasapproval authority,is
required to make a decision on the adopted amendment in which Council may approve,
modify,or refuse to approve theamendment. If Elgin County failsto make a decision
within 120days after the amendment is received any person or public body may appeal
to theOntario Land Tribunal.
This report is intended to provide County Council with information required in order to
make a decision on the adopted amendment.
DISCUSSION:
In 2021the Municipality of Dutton Dunwichinitiated an amendment to their Official Plan
that sdesignated
in order to facilitate new residential development in the Municipality.In
analysing their existing residentially-designated land base, theMunicipalityhad
concluded that some of their existing inventory of residential lands in Wallacetown and
Dutton could notbe feasibly developed and are more appropriately designated
. To replace this inventory,
the Municipality subsequentlyidentifiedan equal amount ofland,currently designated
,that could be feasibly developed.
The Provincial Policy Statement (PPS)allows for adjustments to settlement area
boundaries, outside of larger official plan review processes so long as there is
in land being added to a settlement area. In other words, boundary
adjustment is required to -in,one-or.In this case it
-in, one-
principle.
In the development of the OPA, the Municipality conducted multiple consultations over
2021which included both statutory requirements for public open house and public
meeting, as well as individual communication with affected landownerCounty Staff are
by Dutton Dunwich
Council.
FINANCIAL IMPLICATIONS:
None.
ALIGNMENT WITH STRATEGIC PRIORITIES:
Serving ElginGrowing ElginInvesting in Elgin
Ensuring alignment of Planning for and Ensuring we have the
current programs and facilitating commercial, necessary tools,
services with community industrial, residential, resources, and
need.and agricultural growth.infrastructure to deliver
programs and services
now and in the future.
Exploring different Fostering a healthy
ways of addressing environment.
Delivering mandated
community need.
programs and services
Enhancing quality of
efficiently and
Engaging with our
place.
effectively.
community and other
stakeholders.
LOCAL MUNICIPAL PARTNER IMPACT:
This OPA will impact the Municipality ofDutton Dunwich and was initiated by the
Municipality of Dutton Dunwich.
COMMUNICATION REQUIREMENTS:
The Notice of Decision will be sent to the Municipality and anyone prescribed under the
Planning Act.
CONCLUSION:
Based on the above analysis, it recommended that County Council approve Official
Plan Amendment #5 to the Official Plan of the Municipality of Dutton Dunwich as the
adopted amendment:
Is consistent with the Provincial Policy Statement;
Does not conflict withthe County of Elgin OfficialPlan;
Constitutes good planning;and
I
All of which is Respectfully Submitted Approved for Submission
Brian Lima, General Manager of
Julie Gonyou
Engineering, Planning, & Enterprise
Chief Administrative Officer
(EPE) / Deputy CAO
Paul Hicks
Acting Manager of Planning
OPA 5 – Settlement Boundary Adjustments
By-Law No. 2022-54
BEING A BY-LAW TO ADOPT AMENDMENT NO. 5 TO THE
MUNICIPALITY OF DUTTON DUNWICH OFFICIAL PLAN
WHEREAS the Council of the Corporation of the Municipality of Dutton Dunwich,
pursuant to Section 17 of the Planning Act, R.S.O 1990 hereby enacts as
follows:
1.THAT Amendment No. 5 to the Municipality of Dutton Dunwich Official Plan,
a copy of which is attached to,and forms part of this By-law is hereby
adopted.
2.THAT the Clerk is hereby directed to forward the adopted amendment
together with the necessary support documentation to the County of Elgin
for final approval.
3.THIS By-law comes into force:
a)Where no notice of objection has been filed with the Clerk of the
Municipality within the time prescribed by the Planning Act upon the
expiration of the prescribed time; or
b)Where notice of objection has been filed with the Clerk of the
Municipality within the time prescribed by the Planning Act upon the
approval of the Ontario LandTribunal (OLT).
th
READ a first and secondtime this 8dayof June, 2022.
th
READ a thirdtime and finally passedthis 8dayof June, 2022.
__________________________________
Robert (Bob) Purcell, Mayor
__________________________________
Tara Kretschmer,Acting Clerk
AMENDMENT NO. 5
TO THEOFFICIAL PLAN OF THE
MUNICIPALITY OFDUTTON DUNWICH
June 8, 2022
Proposed Official Plan Amendment
SETTLEMENT BOUNDARY ADJUSTMENT
AMENDMENT NO. 5 TO THE
DUTTON DUNWICH OFFICIAL PLAN
June 8, 2022
Proposed Official Plan Amendment
INDEX
PART A - THE PREAMBLE
The Preamble provides an explanation of the proposed amendment including the purpose,
location, and background information, but does not form partof this amendment.
PART B - THE AMENDMENT
The Amendment describes the changes to the Dutton DunwichOfficial Plan which constitute
Official Plan Amendment No. 5.
PART C - THE APPENDICES
The Appendices provide information related to the Amendment butdo not constitute part of
the Amendment.
Part A –The Preamble
Purpose
The purpose of this Amendment is to update the Municipality’s existing official
plan Schedules“A”,“B”,“C”and “D”with respect to a settlement boundary
adjustment.
The Official Plan is a land use planning document that includes a vision, goals,
and land usepolicy directions for the Municipality of Dutton Dunwich.
The Plan provides a policy framework for topics such asResource
Management, Growth Management, and the provision of Physical Services by
dealingwith issues of Provincial and County interest. The Official Plan
recognizes the planning powersand authorities vested in local municipalities
and doesnot set out detailed local policies.
Location
The amendment applies to the properties identified on the attached key map.
Basis
The settlement boundary adjustment allows for swaps oflands that may not
be feasible for development within the existing settlement area of Dutton and
Wallacetownwith lands that are more appropriate for development and have
access to full municipal services.
Asettlement area boundary is identified as lands that are designatedand
encouragedto accommodate growth. The lands outside the boundary are
typically agricultural or rural.
A total of 33.8 ha of land has been identified withconfirmation from property
owners to proceed with the proposed land swaps.
The justification for amending the Municipality of Dutton Dunwich official plan
is based upon the following considerations.
The Provincial Policy Statements (PPS), 2020 allows for land use adjustments.
The intent is to allow municipalities to adjustwhere lands can be serviced
more appropriately.
The following is set out in the PPS:
1.1.3.9 ….. municipalities may permit adjustments of settlement area
boundaries outside a comprehensive review provided:
a)there would be no net increase in land within the settlement areas;
There is no net increase in land.
b)the adjustment would support the municipality’s ability to meet
intensification and redevelopment targets established by the
municipality;
The adjustment would allow undevelopable lands to be swapped with
land that have access to full municipal services.
c)prime agricultural areas are addressed …….; and
Prime agricultural areas have been addressed in the land swap.
d)the settlement area to which lands would be added is appropriately
serviced and there is sufficient reserve infrastructure capacity to service
the lands.
The lands that are being added to the settlement area have access to
full municipal services.
Based on the density targets of 15 units/ha for low profile residential
development and 35 units/ha for medium profile residential development, set
out in the OP, the 33.8 ha of land would provide for approximately 507 new
single detached dwellings or approximately 1,183 new semi-detached or
rowhomes.
A virtual Open House was held on July 14, 2021 and a virtual Public Meeting
was held on August 18, 2021 as part of public consultation. The purpose of
the consultation process was to obtain preliminary feedback and to confirm if
there are willing hosts for the candidate land swaps.
Part B – The Amendment
Introductory Statement
All ofthis part of the document entitled “Part B – The Amendment” and
consisting of the following schedule change constitutes Amendment No. 5 to
the Municipality of Dutton Dunwich Official Plan.
Details of the Amendment
The Official Plan of the Municipality of Dutton Dunwichis hereby amended as
follows:
1.By deleting Schedules “A”,“B”,“C” and“D”; and
2.By addingSchedules “A”, “B”, “C” and “D”in Schedule 1 which is
attached to and forms part of this Amendment.
SCHEDULE 1 TO OFFICIAL PLAN AMENDMENTNO.5
Key Map No. 1
Legend
HIG
HWAY 401
Dutton Settlement
Area
Current Future
Development
From Agriculture to
Residential
From Agriculture with
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Future Development
Overlay to Residential
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Agriculture
From Residential to
Agriculture with Future
Development Overlay
Current Settlement Area
Boundary
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DGE S
TREET
New Settlement Area
MA
RY STR
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Kilometres
Key Map No. 2
Wallacetown
Legend
From Hamlet to
Agriculture
From Hamlet to
M
CBE
TH
ST
REE
T
Agriculture with Future
Development Overlay
KI
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REET
Current Settlement Area
Boundary
WALLACE STREE
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New Settlement Area
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0100200400
Meters
CORRESPONDENCE September 27, 2022
Items for Consideration (Attached)
1. Letter from the Municipality of Bayham recommending to the County of Elgin that
a traffic study and speed study be conducted on Fulton Street in Vienna.
September 16, 2022
County of Elgin
450 Sunset Drive
St. Thomas, ON
N5R 5V1
Via email: blima@elgin.ca & pdutchak@elgin.ca
Re: Request for Traffic Study
The attached correspondence was considered at the Municipality of September 1, 2022
Regular Meeting of Council with the following motion passed:
Moved by: Deputy Mayor Weisler
Seconded by: Councillor Donnell
THAT the correspondence from Wendy Carmichael re Request for Traffic Study be received for
information;
AND THAT the Council of the Corporation of the Municipality Bayham recommends to the County of
Elgin that a traffic study and speed study be conducted on Fulton Street in Vienna.
Please advise if you require any further information and any next steps by the County of Elgin on this
matter.
If you have any questions or concerns, please contact the undersigned.
Regards,
Meagan Elliott
Deputy Clerk
melliott@bayham.on.ca
CƩƚƒʹWendy Carmichael
{ĻƓƷʹ August 18, 2022 8:54 AM
{ǒĬƆĻĭƷʹ Request for Traffic study
I am submitting this letter as a request for action. The traffic and speed thereof is of significant
concern for this writer and has been expressed by others who live adjacent to or who front on
Fulton Street. We experience large farming machines who access this route and are slower
moving. They include vehicles of various widths and sizes and some often leave sticky residue
on the road as spillage. Many vehicles use the road as a raceway starting at Edison Street and
speed out towards Vienna Line. Trailers and recreational vehicles access the provincial park via
Fulton Street so there is this additional traffic on weekends. We also have the dirt bikes and
ATVs on weekends often by youth. The hill prevents a clear site line so people coming out on
Oak street cannot see what is coming down the hill especially when they come at higher speeds.
collisions are often narrowly averted but witnessed. When our children are getting off of the
buses that they also get on inthe Vienna Community Centre they are at increased risk since there
are no cross walks. The buses used to board and let the children off at the VLCC but now they
may have to do so on the side of the road on Fulton Street which will increase the risk especially
since one of the stops was near the corner of Oak and Fulton but on Fulton. I am asking that the
safety of all these issues be brought forward as a priority especially since we have school
beginning soon and a traffic study and solution for the speed issues be developed. I am not
complaining about the farm vehicles since I have no idea where a viable bypass would be.
Perhaps other residents may have a different thought but we do need to address the safety issues
that seem to be increasing. Thank you.
CORRESPONDENCE – September 27, 2022
Items forInformation – (Attached)
1.Letter from theMinistry of Health advising that the Ministry will provide the County
of Elgin up to $371,045 in additional base funding with respect to the 50/50 Land
Ambulance Services Grant (LASG) for the 2022 calendar year.
2.Letter from the Ministry of Health acknowledging feedback from the County of Elgin
on the need to attract and retain primary care physicians and support municipal
involvement with Ontario Health Teams (OHTs).
CLOSED MEETING AGENDA
September 27, 2022
Staff Reports:
1)General Manager of Engineering, Planning, & Enterprise (EPE) / Deputy CAO –
Municipal Act Section 239 (2) (k) a position, plan,procedure, criteria or instruction to
be applied to any negotiations carried on or to be carried on by or on behalf of the
municipality or local board – Contract Negotiations