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2012-10-01_Supplemental Agenda Packet--Dossier de l'ordre du jour supplémentaireCity of Saint John Common Council Meeting Monday, October 1, 2012 Location: Common Council Chamber Supplemental to Agenda s 12.1 City Manager: Priority Setting and Budget Scheduling s 12.2 City Manager: Request to Designate of Rockwood Park as a Heritage Conservation Area s 12.3 City Manager: Proposed Municipal Drainage Easement — 150 -151 Aspen Street s 13.2 Committee of the Whole: Change to Governance Structure of the City s 13.3 Committee of the Whole: ISN Contract The City of Saint John Seance du conseil communal Le lundi le, octobre 2012 Lieu : Salle du conseil communal Ordre du jour supplementaire s 12.1 Directeur general : etablissement des priorites et calendrier du budget s 12.2 Directeur general : demande visant a designer le parc Rockwood comme une afire de conservation du patrimoine s 12.3 Directeur general : projet de servitude de drainage municipale — 150 et 151, rue Aspen s 13.2 Comite plenier: Changer a la Structure de Gouvernance de la Ville s 13.3 Comite plenier: ISN Contrat REPORT TO COMMON COUNCIL September 27, 2012 His Worship Mayor Mel Norton and Members of Common Council Your Worship and Members of Common Council: SUBJECT: Priority Setting and Budget Scheduling PURPOSE The City of Saint John On September 24, 2012 Common Council passed a resolution that directed the City Manager to report back in one week's time on scheduling options for their priority setting sessions and 2013 service -based budget deliberations. This report outlines an alternative scheduling option for Council to consider for setting priorities and a proposed timeline for a coordinated approach to the 2013 budget process. COUNCIL'S 2012 -2016 PRIORITY SETTING As part of its governance role Common Council establishes strategic priorities that will guide decision - making and allow the City to demonstrate accountability for results during its four year term. These priorities define what Council would like to achieve over its term and provide an opportunity to set a longer term direction for the community. As a result, Council's priorities will be one of the measures that the public will use to evaluate Council's performance. On July 18, 2012 a process for establishing Council's priorities was endorsed by Common Council. The process was designed to incorporate three (3) workshop style sessions to facilitate team building and collective decision - making. The goal was to ensure that Council formally established their priorities in time to support the 2013 service -based budget process. Based on strategic planning best practices, adequate time between sessions was proposed for the facilitator to assess results and prepare the materials required to ensure Council's decision - making is informed in terms of community priorities and the organization's capacity to achieve these goals. The proposed timing of sessions was also intended to provide time for Council to reflect on their collective discussions and decisions. M &C September 27, 2012 - Priority Setting and Budget Scheduling Page 2 of 4 A purchasing process was undertaken to engage an external facilitator for Council's priority setting in August 2012. The City did not receive any proposals from the seven facilitators that were invited to bid. The statement of work was reworked and a second invitation to bid resulted in one proposal from Lift Consulting. Based on the facilitator's availability, it was proposed that the two priority setting sessions outlined in the proposal call be conducted on October 13 and October 27, 2012. Council expressed concerns over these dates indicating the need to approve priorities in a timely matter, time commitments, and ability to build momentum. Working with the facilitator to address Council's concerns, a new plan for conducting priority setting sessions is being proposed in Table 1. The plan incorporates three shorter sessions over a condensed timeline. It also incorporates time for reflection and context for Council's decision - making. Table 1: Proposed schedule for Council's riority setting sessions Date Session Description Friday October 12`x' Setting the Context: Review of information that will guide Council in (4:00 PM to 7:OOPM) setting priorities including Our Saint John - Community Vision, P1anSJ, public engagement results, and priority themes generated during the one- on -one meetings with Council members. Saturday October 13`h Defining Outcomes: Participate in workshop activities that will support (9:OOAM to 2:00 PM) Council in collectively defining strategic objectives for the community. Tuesday October 23rd Confirming Outcomes: Finalize strategic outcomes against (6:00 PM to 9:00 PM) organizational capacity. (As a note, this session will be held in place of the regular Council meeting scheduled for October 22 "d) 2013 BUDGET PROCESS: SERVICE -BASED OPERATING AND CAPITAL BUDGETS The goal for the 2013 budget process is to ensure that all budgets are approved in 2012. Council will consider a total of four budgets including the general operating and capital budgets and the utility (water and wastewater) operating and capital budgets. Staff is proposing a coordinated approach to a service -based budgeting process that includes a public engagement program that will inform decision - making, Council's priority setting and a multi -year core service review to achieve this goal. Table 2 outlines key milestone dates for Council's consideration for the 2013 budget process. The process is designed to provide Council with adequate time to review each component of the budget process to make informed decisions that reflect community needs and interests. M &C September 27, 2012 - Priority Setting and Budget Scheduling Page 3 of 4 In addition to priority setting, the proposed process provides Council with an opportunity to establish a financial framework for the budget process. This involves Council providing direction on the tax -rate, user fees, non -tax revenues and utility rates. It is envisioned that decisions related to the financial framework will be informed with tax -base growth, unconditional grant, debt capacity and pension liability projections. Council will also be given the opportunity to provide direction on previous Council commitments to enhance certain services (e.g., road condition enhancement with additional funding allocations over a specified period). Table 2: Key milestones dates for the 2013 October 1 Public Engagement — Community workshops and on -line consultation complete October 9 Financial Framework — Presentation on financial outlook; Council direction provided October 29 or Council Priorities — Council approval (sign -off) of priorities for 2012 -2016 term November 5 November 5 Draft Utility Fund Capital Budget — Presented for Council review November 19 Utility Fund Capital Budget — Council to approve Draft General Fund Capital Budget — Presented for Council review November 26 Core Service Review Results — Draft options for change and benchmarking information Draft Utility Fund Operating Budget — Presented for Council review December 3 General Fund Capital Budget — Council to approve Draft General Fund Operating Budget — Presented for Council review December 10 Utility Fund Operating Budget — Council to approve (set utility rate) Week of General Fund Operating Budget — Council to approve (set tax rate) December 17 In order to meet the proposed timelines for the 2013 budget process, there are several key assumptions. City receives tax base assessment and unconditional grant information from the Province of New Brunswick by the third week of November. Final determination is made on the pension liability by the end of November. • Determination of which service areas, agencies, boards and commissions (ABCs), and community organizations Council would like to hear from. (Any required presentations and /or question periods would he incorporated into the proposed schedule) M &C September 27, 2012 - Priority Setting and Budget Scheduling Page 4 of 4 RECOMMENDATIONS It is recommended that Common Council: 1. Approve the proposed schedule and plan for Council's priority setting sessions (Table 1). 2. Endorse the proposed process and timelines for a coordinated approach to the 2013 service -based budget (Table 2). Respectfully submitted, Stephanie Rackley- Roach, P.Eng Manager, Corporate Planning Jacqueline Hamilton, MCIP RPP Commissioner, Strategic Services ptncWoods, CGA City Manager REPORT TO COMMON COUNCIL M &C- 2012 -249 October 3, 2012 His Worship Mayor Mel Norton and Members of Common Council Your Worship and Councillors: SUBJECT: Request to Designate of Rockwood Park as a Heritage Conservation Area INTRODUCTION 14 City of Saint John At the December 5, 2011, Common Council referred a letter from Ms. Joan Pearce to the City Manager which included a request to designate Rockwood Park as a Heritage Conservation Area. DISCUSSION Common Council is well aware of the resourcing challenges that are impacting the delivery of the heritage conservation service. City staff have indicated to Council on a number of previous occasions that the City already has too many designated properties given the human and financial resources available for the program. These challenges are particularly acute at the present time as the service received a 28% budget reduction in 2012 and is presently operating with no dedicated staff. As a result, the City is in no position to consider adding designated properties, particularly given the uncertainties respecting the 2013 and future operating budgets. If Council is of a view that this proposal should be evaluated and seriously considered, then it would be necessary for this project to be referred to the budget process so the new resources necessary to undertake the work can be identified and secured. RECOMMENDATION: It is recommended that Common Council not consider designating Rockwood Park as a Heritage Conservation Area. Respectfully submitted, Ken Forrest, MCIP, RPP Commissioner Growth and Development Services J. Patrick Woods, C.G.A. City Manager M &C- 2012 --252 September 27, 2012 His Worship Mayor Mel Norton and Members of Common Council Your Worship and Councillors: SUBJECT: Proposed Municipal Drainage Easement -150 -151 Aspen Street ANALYSIS: On April 27 & May 4, 2009, Common Council assented to a subdivision proposing to extend an existing public street (Aspen Street) in order to accommodate the creation of two unserviced lots. The lots to be created were intended to accommodate the development of one single - family dwelling per lot. With the approval of certain variances (lot area and permission to construct the street extension to the "rural road" standard) from the Planning Advisory Committee, the proposed lots would conform to the requirements of the Zoning and Subdivision By -laws. While the Development Officer would ordinarily be in a position to endorse the final plan at this point, the final subdivision plan would vest two municipal drainage easements, as illustrated on the attached Weldon Russell Subdivision Plan. Consequently, the assent of Common Council is required before the plan can be endorsed. Normally the vesting of easements is considered in a recommendation from the Planning Advisory Committee when dealing with more significant subdivision applications. However, no municipal drainage easements were indicated on the plan at the time this matter was before the Committee, and the Community Planning Act does not require their involvement when dealing only with this type of easement. City of Saint John M & C-2012-252 - 2 - September 27, 2012 The location of the proposed easement has been determined by working in conjunction with Municipal Operations and Engineering, which supports the vesting of the proposed easement. Therefore, the assent of the proposed municipal drainage easements is recommended. RECOMMENDATION: That Common Council assent to the submitted Weldon Russell Subdivision, in one or more phases, with respect to the proposed municipal drainage easements. Respectfully submitted, Ken Forrest, MCIP, RPP Commissioner Planning an Development trick Woods, CGA City Manager PF Project No. 12 -131 APPROVALS $' 0w Hem - C1.1.111a am Landly PJA. 1 50186510 h EA.d&• Wt. 1 2aW -10-17 tWlmwd : TrwWw % 2707/515 R.y. 2009-04 -09 \ Oe w .._`.. °ehbno 0. lonr7 \ C1Vr of BdFA J.M - EMWth GormWj - a.lnrnan CYrt `\ t;, — Data Cay. Chad Chord Ax C.C. \ 2-0 31L74 54' S oo 1 5-4 20.12 w 86' 16, T 3-4 32,24 w 64' So' 1 \ 9-0 3328 352 10' 60• 071 101 -550 27.27 361 17 50' 678 9-E3{ 20.12 7S M' ]0• 450 w P&M M HWae Sande Ltd. doted M,. 3. 1105 . 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Parkhill ft Nw T3.—fO lord Surrgor ) 362 25 0 20 40 60 so 1:1 am mw>. He. 309062 oMr Na20M wo. 1157157 Nd 2007 October 1" 2012 Deputy Mayor and Councillors: Subject. Committee of the Whole — Change to Governance Structure of the City The Committee of the Whole, having met on September 4th, 2012, adopted the following resolution: "RESOLVED that all necessary steps be taken to forthwith amend the governance of the City structure such that Council has one (1 ) direct report, namely the City Manager, through whom all others report and that to facilitate this change that the office of the City Manager, City Solicitor, Treasurer, and Common Clerk work collaboratively to ensure the completion of this process forthwith and, in any event by not laterlhan the end of 2012." Mel Norton Mayor C`9- g, �V!141• 1' :�HN P.O. Box 1971 Sjint Win, NO + -ufa E2L 4itio C.P. 1 971 Unt Wn, NA. Canad i E2L 40 INVESTIGATIVE SERVICES CONTRACT THIS CONTRACT (the "Contract ") made in triplicate as of the day of October, 2012 (the "Effective Date "). BETWEEN: THE CITY OF SAINT JOHN, having its offices at the City Hall Building at 15 Market Square, Saint John, New Brunswick, a body corporate by Royal Charter, confirmed and amended by Acts of the Legislative Assembly of the Province of New Brunswick, hereinafter called the "City ", THE FIRST PART, _►I INVESTIGATIVE SOLUTIONS NETWORK INC., an extra - provincial corporation incorporated under the laws of the Province of New Brunswick, having its head office located at Pickering in the Province of Ontario, hereinafter referred to as the "Investigator ", OF THE SECOND PART. WHEREAS the City has contracted with the Investigator to carry out the Work and Deliverables set out in this Contact; AND WHEREAS notwithstanding that the City recognizes that individual(s) have or may come forward with allegation(s) of sexual abuse by Mr. Kenneth Estabrooks and that such individual(s) may have confidential counselling services made available to them, no conclusion reached by the Investigator and no referral to confidential counselling services shall constitute an admission of liability on the part of the City respecting any allegation(s) of sexual abuse by Mr. Kenneth Estabrooks. NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual covenants and agreements hereinafter contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties covenant and agree as follows: 1 INTERPRETATION AND GENERAL PROVISIONS 1.1 Defined Terms 25 -2- When used in this Contract, the following words or expressions have the following meanings: (a) "Applicable Laws" mean all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by- laws, rules, regulations that now or at any time hereafter may be applicable to this Contract or any part thereof; (b) "Business Day" means a day other than a Saturday, Sunday or statutory holiday in the Province of New Brunswick; (c) "Change in Law" means the coming into effect or repeal (without re- enactment or consolidation) in New Brunswick of any Applicable Laws, or any amendment or variation of any Applicable Laws, including any judgment of a relevant court of law, board, arbitrator or administrative tribunal, which changes binding precedent in New Brunswick in each case after the date of this Contract; (d) "City Address" means 15 Market Square, City Hall, Saint John, New Brunswick, E2L 4L1, Telephone: 506.658.2862, Fax: 506.674.4214; (e) "City Manager" means the city manager of the City or his designate appointed by resolution of Common Council; (f) "City Confidential Information" means all information of the City that is of a confidential nature, including all confidential information in the custody or control of the City or the Investigator, regardless of whether it is identified as confidential or not, and whether recorded or not, and however fixed, stored, expressed or embodied, which comes into the knowledge, possession or control of the Investigator in connection with its performance of this Contract. For the purposes of greater certainty and without limiting the generality of the foregoing, City Confidential Information shall- (i) Include but not be limited to: (i) any and all new information derived at any time from any such information whether created, collected or provided by the City, the Investigator in its performance of this Contract or any third party; (ii) any and all information (including personal information) that the City is obliged, or has the discretion, not to disclose under provincial or federal legislation or at common law; any or all information or work product in the possession of the Investigator that is associated in any way with this Contract and, without limiting the generality of the foregoing, any information or work product that is 26 -3- captured by the defined term "Work and Deliverables" in this Contract; (ii) Not include information that: (i) is or becomes generally available to the public without fault or breach on the part of the Investigator of any duty of confidentiality owed by the Investigator to the City or to any third party; (g) "City Representative" means the City Manager or his designate, as communicated in writing to the Investigator Representative from time to time by the City Manager; (h) "Client" means the City; (i) "Common Council" means the elected municipal council of the City; (j) "Conflict of Interest" includes, but is not limited to, any situation or circumstance where in relation to the performance of this Contract, the Investigator's other commitments, relationships or financial interests: (i) Could or could be seen to exercise an improper influence over the objective, unbiased and impartial exercise of its independent judgment; or (ii) Could or could be seen to compromise, impair or be incompatible with the effective performance of its contractual obligations; (k) "Contract" means this contract and all accompanying schedules; (1) "Direct Losses" means any financial losses and /or out of pocket expenses suffered or incurred by a Party in conjunction with the Work and Deliverables, but excluding any loss of profit, or punitive, special, indirect, consequential or general damages claims; (m) Disbursements" has the meaning ascribed thereto in Schedule 1; (n) "Disputes" mean any dispute, controversy, disagreement or failure to agree arising out of, in connection with, or relating to the interpretation, performance or application of the Contract; (o) "Dispute Resolution Procedure" has the meaning ascribed thereto in Schedule 3; 27 M (p) "Fees" means the amount, in Canadian funds, to be charged by the Investigator for the Work and Deliverables under this Contract, as set out in Schedule 1, representing the full amount chargeable by the Investigator for the provision of the Work and Deliverables, including but not limited to: (i) All applicable duties and taxes, excluding Harmonized Sales Tax; (ii) All labour and material costs; (iv) All insurance costs; and (v) All other overhead including any fees or other charges required by law; (q) "Force Majeure Event" means the occurrence after the date of this Contract of any circumstance, occurrence or event beyond the reasonable control of a Party to this Contract to the extent such cannot be prevented or mitigated by the affected Party, including, without limitation, any of the following: (i) civil war, armed conflict, warlike operation or terrorism, acts of foreign enemies, hostilities, invasion, rebellion, military or usurped power; (ii) a Change in Law, which directly causes either Party to be unable to comply with or perform all or a material part of its obligations under this Contract, despite the reasonable efforts of the Party claiming Force Majeure to prevent its occurrence or mitigate its effects; provided always that such circumstances, occurrence or event does not arise by reason of: a) the negligence or any misconduct of the Party claiming Force Majeure; b) any act or omission of the Party claiming Force Majeure in breach of the provisions of this Contract, or c) the lack or insufficiency of funds or failure to make payment of monies or provide required security. (r) "Harmonized Sales Tax" or "HST" means the harmonized sales tax or the tax imposed under Part IX of the Excise Tax Act or any M -5- other federal sales tax, consumption tax, excise tax, value added tax, business transfer tax or other tax that can reasonably be regarded as a substitute or replacement for the harmonized sales tax or the tax imposed under the Excise Tax Act (the "HST /GST ") properly exigible in respect of the Work and Deliverables to be performed under this Contract; (s) "Industry Standards" include, but are not limited to: (i) the provision of any and all labour, supplies, equipment and other goods or services that are necessary and can reasonably be understood or inferred to be included within the scope of this Contract or customarily furnished by Persons providing services of the type provided hereunder in similar situations in New Brunswick; and (ii) adherence to commonly accepted norms of ethical business practices; (t) "Investigator" means the person or entity identified as such in the Contract; (u) "Investigator Address" means 1099 Kingston Road, Suite 237, Pickering, Ontario, L1 V 11135, Telephone: 905.421.0046, Fax: 905.421.0048 ; (v) "Investigator Representative" means the person designated by the Investigator and "Investigator Representatives" mean those persons designated in writing to the City Manager by the Investigator with duly vested authority to act on behalf of the Investigator; (w) "Minor Change" means a modest or slight change to the Work and Deliverables that will have no effect on the Fees, the Disbursements or the total budgetary limit of One Hundred Thousand Dollars ($100,000) inclusive of HST that has been allocated in Schedule 1; (x) "Party" individually means the City and the Investigator and "Parties" means the City and the Investigator; (y) "Person" if the context allows, includes any individual, person, firm, partnership, agency, board, statutory commission, commission or corporation or any combination thereof; 29 -6- (z) "Schedules" means the following schedules attached to and forming an integral part of this Contract: (i) Schedule 1 — Fees and Disbursements; (ii) Schedule 2 — Work and Deliverables; (iii) Schedule 3 — Dispute Resolution; (aa) "Subcontractor" is a person or entity, other than the Investigator, having direct agreement with the Investigator to perform a part or parts of the Work and Deliverables; (bb) "Term" means the term of this Contract commencing on the date this Contract comes into effect and ending upon the earlier of: (A) Completion of the Work and Deliverables, as determined by Common Council; and (B) Termination of this Contract in accordance with any of its terms or conditions. (cc) "Work and Deliverables" is a term which captures any and all of the services and opinions, advisory or otherwise, to be provided by the Investigator or its directors, officers, employees, agents, partners, affiliates or Subcontractors to the City under this Contract; any and all of the work and /or work product to be undertaken, produced, compiled and /or completed by the Investigator or its directors, officers, employees, agents, partners, affiliates or Subcontractors for the City under this Contract and any and all reports and /or other deliverables that the Investigator or its directors, officers, employees, agents, partners, affiliates or Subcontractors shall be obligated to produce and /or complete for the City under this Contract and, without limiting the generality of the foregoing, in accordance with Schedule 2 — Work and Deliverables. The "Work and Deliverables ", as defined herein, shall without exception constitute "City Confidential Information" as defined in this Contract; 1.2 No Indemnities from the City 1.2.1 The City provides no indemnification whatsoever to the Investigator under this Contract respecting any aspect whatsoever of the Investigator's performance of this Contract. i -7- 1.3 Entire Contract 1.3.1 This Contract, including any Schedules hereto, constitutes the entire Contract between the Parties and supersedes all prior Contracts, communications, understandings, negotiations and discussions, whether oral or written, express or implied, of the Parties with respect to the subject matter hereof. There are no covenants, representations, warranties, agreements or conditions expressed or implied or collateral or otherwise forming part of or in any way affecting or relating to this Contract except as expressed herein. 1.3.2 The Parties agree that in entering into this Contract they have not relied upon any oral or written agreements, representations, warranties, promises, information, or understandings, express or implied, not specifically set forth in this Contract. 1.4 Severability 1.4.1 If any term or condition of this Contract, or the application thereof to the Parties or to any Persons or circumstances, is to any extent invalid or unenforceable, the remainder of this Contract, and the application of such term or condition to the Parties, Persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby. 1.5 Headings and Grammatical Variations 1.5.1 The division of this Contract into sections and paragraphs and the insertion of headings are for convenience of reference only, and shall not affect the construction or interpretation of this Contract. 1.5.2 In this Contract, grammatical variations of any defined terms shall, unless the context otherwise requires, have similar meanings to such defined terms, words denoting the singular include the plural and vice versa, and words denoting any gender include all genders. 1.6 Force Majeure 1.6.1 Neither Party shall be liable for damages caused by delay or failure to perform its obligations under this Contract where such delay or failure is caused by an event beyond its reasonable control. 1.6.2 The Parties agree that an event shall not be considered beyond a Party's reasonable control if a reasonable business person applying due diligence in the same or similar circumstances under the same or similar obligations as those contained in this Contract would have put in place contingency plans to materially mitigate or negate the effects of such event. 31 - 8 - 1.6.3 Without limiting the generality of the foregoing, the Parties agree that Force Majeure events shall include those events as described in Section 1.1. 1.6.4 If a Party seeks to excuse itself from its obligations under this Contract due to a Force Majeure event, that Party shall immediately notify the other Party of the delay or non - performance, the reason for such delay or non - performance and the anticipated period of delay or non - performance. If the anticipated or actual delay or non - performance exceeds fifteen (15) Business Days, the other Party may immediately terminate this Contract by giving notice of termination and such termination shall be in addition to the other rights and remedies of the terminating party under this Contract, at law or in equity. 1.7 Notices 1.7.1 Notices shall be in writing and shall be delivered by courier, personal delivery, facsimile or other electronic means and shall be addressed to, in the case of service upon the City, the City Address to the attention of the City's Representative or, in the case of service upon the Investigator, to the Investigator Representative. 1.7.2 Notices shall be deemed to have been given in the case of courier, personal delivery, facsimile or other electronic means, one (1) Business Day after such notice is received by the other Party. In the event of a courier disruption, notices must be given by personal delivery or by facsimile. Unless the Parties expressly agree in writing to additional methods of notice, notices may only be provided by the methods contemplated in this Section. Any written notice provided by electronic mail shall not be valid unless and until the Party to whom the notice has been sent has acknowledged receipt thereof in writing by reply email. 1.8 Governing Law 1.8.1 This Contract shall be governed by and construed in accordance with the laws of the Province of New Brunswick and the federal laws of Canada applicable therein, where the subject in question is not addressed by the laws of New Brunswick. 1.9 Modification and Amendments 1.9.1 This Contract may not be modified or amended except by an instrument in writing signed by the Parties or by their successors or permitted assigns. 1.10 Enurement 1.10.1 This Contract shall extend to, be binding upon and enure to the benefit of the Parties and their respective successors and permitted assigns. 2.0 STATUS OF INVESTIGATOR 32 -9- 2.1 Capacity of Investigator 2.1.1 The Investigator represents and warrants that it has the full right, power and authority to enter into this Contract and there is no contract with any other Person which would in any way interfere with the rights of the City under this Contract. 2.1.2 The Investigator further represents and warrants that it is registered to carry out the Work and Deliverables in the Province of New Brunswick in accordance with any Applicable Laws. 2.2 Authority of Representatives 2.2.1 The Parties represent that their respective representatives have the authority to legally bind them to the extent permitted by Applicable Laws. 2.3 No Partnership, Agency etc. 2.3.1 The Investigator shall have no power or authority to bind the City or to assume or create any obligation or responsibility, express or implied, on behalf of the City. The Investigator shall not hold itself out as an agent, partner or employee of the City. 2.3.2 Nothing in this Contract shall have the effect of creating an employment, partnership or agency relationship between the City and the Investigator (or any of the Investigator's directors, officers, and employees, agents, partners, affiliates or Subcontractors). 2.4 Acts and Omissions 2.4.1 The Investigator acknowledges and agrees that it is liable for the acts and omissions of its directors, officers, and employees, agents, partners, affiliates and Subcontractors. 2.4.2 This paragraph is in addition to and not in derogation of any and all of the Investigator's liabilities under this Contract and under the general application of Applicable Laws. 2.4.3 The Investigator shall advise those individuals and entities, for whom it is responsible of its obligations under this Contract and, without limiting the generality of the foregoing, shall take all appropriate action to ensure compliance with this Contract, including, without limitation, the provisions of Section 6.0 respecting Confidentiality. 2.4.4 In addition to any other liabilities of the Investigator pursuant to this Contract or otherwise at law or in equity, the Investigator shall be liable for all damages, costs, expenses, losses, claims or actions arising from any breach of this Contract resulting from the actions of the above mentioned individuals and entities. 33 -10- 2.5 No Subcontracting or Assignment 2.5.1 The Investigator shall not subcontract, transfer or assign the whole or any part of this Contract or any monies due under it without the prior written consent of the City (which may be arbitrarily withheld). Such consent shall be in the sole discretion of the City and subject to the terms and conditions that may be imposed by the City and will not be unreasonably withheld. 2.5.2 Without limiting the generality of the conditions which the City may require in its sole and absolute discretion prior to consenting to the Investigator's use of a Subcontractor, every Contract entered into by the Investigator with a Subcontractor shall adopt all of the terms and conditions of this Contract notwithstanding such subcontract, transfer or assignment. 2.5.3 Nothing contained in this Contract shall create a contractual relationship between any Subcontractor or its directors, officers, employees, agents, partners or affiliate and the City. 2.6 Change of Control 2.6.1 In the event that there is a change of control in the Investigator, the Investigator shall immediately disclose such change in control to the City's Representative and shall comply with any terms and conditions subsequently prescribed by the City resulting from the disclosure. 2.7 Conflicts of Interest 2.7.1 Notwithstanding and in addition to the foregoing, the Investigator shall: (a) Avoid any Conflict of Interest in the performance of its contractual obligations under this Contract; (b) Disclose without delay any actual or potential Conflict of Interest that arises during the performance of its contractual obligations with the City; (c) Comply with any requirements prescribed by the City to resolve any Conflict of Interest; and (d) Avoid any Conflict of Interest after the Work and Deliverables is completed. 2.7.2 In addition to all other contractual rights or rights available at law or in equity, the City may, in its sole and absolute discretion, immediately terminate this Contract upon giving notice to the Investigator where: (a) The Investigator fails to disclose an actual or potential Conflict of Interest; 34 (b) The Investigator fails to comply with any requirements prescribed by the City to resolve a Conflict of Interest; or (c) The Investigator's Conflict of Interest cannot be resolved. This paragraph shall survive any termination or expiry of this Contract. If applicable, the Investigator shall not, during or after the course of this Contract, act for or on behalf of any Person, entity, or association in relation to a proceeding and /or transaction to which the City is a party. 3.0 PERFORMANCE BY INVESTIGATOR 3.1 Commencement of Performance 3.1.1 The Investigator has commenced performance of the Work and Deliverables described in this Contract on the Effective Date. 3.2 General Direction 3.2.1 The Investigator shall perform the Work and Deliverables under the general direction of the City's Representative. 3.3 Performance Warranty 3.3.1 The Investigator hereby represents and warrants that the Work and Deliverables shall be provided fully and diligently in a professional and competent manner by persons qualified and skilled in their occupations and furthermore that all Work and Deliverables will be provided in accordance with: (a) This Contract; (b) Industry Standards; (c) Any applicable Codes of Practice, Codes of Conduct or Ethical Standards governing the Investigators; and (d) Applicable Laws. 3.3.2 If any of the Work and Deliverables, in the opinion of the City, are inadequately provided or require corrections or clarifications, the Investigator shall forthwith make the necessary rectification or corrections and clarifications at its own expense as specified by the City in a rectification notice. 3.4 Use of City Property 3.4.1 The Investigator acknowledges that unless it obtains specific written preauthorization from the City, any access to or use of City property, technology 35 -12- or information that is not necessary for the performance of its obligations with the City under this Contract is strictly prohibited. 3.4.2 The Investigator further acknowledges that the City may monitor the Investigator to ensure compliance with this paragraph. This paragraph is in addition to and shall not limit any other obligation or restriction placed upon the Investigator hereunder. 3.5 No Waiver 3.5.1 Any failure by the City to insist in one or more instances upon strict performance by the Investigator of any of the terms or conditions of this Contract shall not be construed as a waiver by the City of its right to require strict performance of any such terms or conditions, and the obligations of the Investigator with respect to such performance shall continue in full force and effect. 3.6 Rights and Remedies 3.6.1 The express rights and remedies of the City and the obligations of the Investigator set out in this Contract are in addition to and shall not limit any other rights and remedies available to the City or any other obligations of the Investigator at law or in equity. 3.7 Reporting Requirements 3.7.1 The Investigator and the Investigator Representatives acknowledge and agree that they will directly report to the City's Representative and provide updates to Committee of the Whole of Common Council as required by the City's Representative. 3.7.2 The Investigator agrees and acknowledges that it will regularly (as required by the City's Representative) and, without limiting the generality of the foregoing, at intervals stipulated in Schedule 2, present a written report to the City's Representative on the status of the Work and Deliverables it is carrying out under this Contract in such form as may be required by the City's Representative. 3.8 Time of the Essence 3.8.1 The Investigator acknowledges that time is of the essence for the completion of the Work and Deliverables under this Contract in, without limiting the generality of the foregoing, accordance with the timelines and work schedules set out in Schedule 2. 4.0 PAYMENT FOR PERFORMANCE W - 13 - 4.1 Fees and Disbursements 4.1.1 Subject to the Investigator's compliance with the provisions of this Contract, the City shall pay the Investigator for the Work and Deliverables under this Contract as provided in Schedule 1 - Fees and Disbursements. 4.2 Payment Process 4.2.1 Unless the Parties expressly set out an alternative billing and payment process in Schedule 1, the following process shall govern: (a) The Investigator shall provide the City's Representative with a monthly billing statement no later than ten (10) Business Days after the end of every month and that billing statement shall include (i) the reference number assigned to this Contract by the City; (ii) a detailed description of the Work and Deliverables provided /completed for the applicable month; and (iii) taxes, if payable by the City, identified as separate items; (b) The City's Representative shall approve or reject the billing statement within fifteen (15) Business Days of its receipt, and in the event that the City's Representative rejects the billing statement for incompleteness or other error or inadequacy, it shall so advise the Investigator promptly in writing and the Investigator shall provide additional information as required by the City's Representative to substantiate the billing statement; (c) Each billing statement is subject to the approval of the City's Representative before any payment is released and payment shall be made within thirty (30) Business Days of such approval; and (d) Any subparagraph set out above that is not expressly replaced in Schedule 1 with an alternative provision shall remain in full force and effect. 4.3 Hold Back and Set Off 4.3.1 The City may hold back payment or set off against any payment to the Investigator hereunder if, in the opinion of the City acting reasonably, the Investigator has failed to comply with any requirements of this Contract, and the Investigator shall not suspend or terminate the provision of the Work and Deliverables or the performance of its obligations hereunder in respect of any such holdback or set -off of payment. 4.4 No Other Expenses 4.4.1 There shall be no other charges payable by the City under this Contract to the Investigator other than the Fees and Disbursements established under this 37 - 14- Contract unless such charges and /or rates are first authorized in writing by the City Representative's and, where required, by Common Council. 4.5 Taxes and Duties 4.5.1 Unless otherwise stated, the Investigator shall pay all applicable taxes, including sales and excise taxes incurred by or on the Investigator's behalf with respect to this Contract. 4.6 HST Status 4.6.1 The City is subject to the provincial Harmonized Sales Tax. If the City becomes exempt from payment of Harmonized Sales Tax, the City will provide the Investigator with a certification that the Services are required for the use of the City and are therefore not subject to the Harmonized Sales Tax. 4.7 Withholding Tax 4.7.1 The City shall withhold any applicable withholding tax from amounts due and owing to the Investigator under this Contract and shall remit it to the appropriate government in accordance with applicable tax laws. 4.8 No Late Payment Charges 4.8.1 The City will endeavour to pay invoices when due to the Investigator, but shall not be required to pay interest on any late payments. 5.0 CHANGE IN THE WORK AND DELIVERABLES 5.1 Changes 5.1.1 Should the Parties agree that it is necessary to alter or modify the Work and Deliverables set out in this Contract, the Parties shall be required to modify the Contract accordingly by way of an amending agreement in accordance with standard processes and procedures governing contracts for both Parties. Notwithstanding the foregoing, should the necessary alteration or modification to the Work and Deliverables set out in this Contract constitute a Minor Change, such alteration or modification may be mutually agreed to in writing by the City's Representative and the Investigator Representative. 5.2 Delays 5.2.1 If the Investigator is delayed in the performance of the Work and Deliverables by an action or omission of the City or anyone employed or engaged by them directly or indirectly, contrary to the provisions of this Contract, then the contract time shall be extended for such reasonable time as agreed between the City and W - 15 - the Investigator. There shall be no additional Fees and Disbursements paid by the City to the Investigator owing to any delays caused by the City. 6.0 CONFIDENTIALITY 6.1 Confidential Information 6.1.1 During and following the Term, the Investigator shall: (a) Keep all City Confidential Information confidential and secure; (b) Limit the disclosure of City Confidential Information to only those employees, directors, partners, officers, agents, representatives, advisors or Subcontractors who have a need to know it in order for the Investigator to perform the Work and Deliverables hereunder; (c) Not directly or indirectly disclose, destroy, exploit or use any City Confidential Information (except for the purpose of completing the Work and Deliverables, or except if required by order of a court or tribunal having jurisdiction), without first obtaining: (i) The written consent of the City; and (ii) In respect of any City Confidential Information relating to any third party, the written consent of such third party; (d) Provide City Confidential Information to the City's Representative as required by the City's Representative; (e) Return and /or provide any and all City Confidential Information to the City on or before the termination or expiry of the Term, with no copy or portion kept by the Investigator. The Investigator shall ensure that those of its directors, officers, employees, agents, partners, representatives, advisors or Subcontractors who have been provided with City Confidential Information will keep all City Confidential Information confidential and secure in accordance with the requirement of this Contract and that all such City Confidential Information will be returned and /or provided to the City before the termination or expiry of the Term. 6.2 No Copying 6.2.1 The Investigator shall not copy any City Confidential Information, in whole or in part, unless copying is essential for the provision of the Work and Deliverables. 6.2.2 On each copy made by the Investigator, the Investigator must reproduce all notices which appear on the original and treat each copy of City Confidential Information as if it were the original. M - 16- 6.3 Injunctive Relief 6.3.1 The Investigator acknowledges that breach of any provisions of this Section 6.0 may cause irreparable harm to the City or to any third party to whom the City owes a duty of confidence, and that the injury to the City or to any third party may be difficult to calculate and inadequately compensable in damages. 6.3.2 The Investigator agrees that the City is entitled to obtain injunctive relief (without proving any damage or harm sustained by it or by any third party) or any other remedy against any actual or potential breach of the provisions of this Section 6.0. 6.4 Notice and Protective Order 6.4.1 If the Investigator or any of its directors, officers, employees, agents, representatives, advisors or Subcontractors becomes legally compelled to disclose any City Confidential Information, the Investigator will provide the City with prompt notice to that effect in order to allow the City to seek one or more protective orders or other appropriate remedies to prevent or limit such disclosure, and it shall co- operate with the City and its legal counsel to the fullest extent. 6.4.2 If such protective orders or other remedies are not obtained, the Investigator will disclose only that portion of City Confidential Information which the Investigator is legally compelled to disclose, only to such person or persons to whom the Investigator is legally compelled to disclose, and the Investigator shall provide notice to each such recipient (in co- operation with legal counsel for the City) that such City Confidential Information is confidential and subject to non - disclosure on terms and conditions equal to those contained in this Contract and, if possible, shall obtain each recipient's written agreement to receive and use such City Confidential Information subject to those terms and conditions. 6.5 Survival 6.5.1 The provisions of this Section 6.0 shall survive any termination or expiry of this Contract. 7.0 INDEMNITY AND INSURANCE 7.1 Indemnification 7.1.1 Subject to Subsection 7.1.2 hereof, but notwithstanding any other sections, subsections, or paragraphs herein, the Investigator shall indemnify and save harmless the City from all claims by whomsoever claimed, made, brought or prosecuted in any manner and whether in respect of property owned by others or in respect of damage sustained by others based upon or arising out of or in connection with the performance of this Contract or anything done or purported 40 -17- to be done in any manner hereunder, but only to the extent that such claims are attributable to and caused by the Investigator's negligence, errors or omissions. 7.1.2 In no event shall the Investigator be obligated to indemnify the City in any manner whatsoever in respect of any claims caused by the negligence of the City, or any Person for whom the City is responsible. 7.2 Investigator's Insurance 7.2.1 The Investigator, at no expense to the City, shall obtain and maintain in full force and effect during the term of this Contract, a policy or policies of insurance with the following minimum limits of liability: (a) Professional Errors and Omissions Liability Insurance The Insurance Coverage shall be in the amount of Two Million Dollars ($2,000,000.00) per claim and in the aggregate. (b) Comprehensive General Liability and Automobile Insurance The Insurance Coverage shall be of not less than Two Million Dollars ($2,000,000.00) per occurrence and in the aggregate for general liability and Two Million Dollars ($2,000,000.00) for automobile insurance. This policy of insurance shall name the City as an additional insured and shall contain a cross - liability clause. 7.2.2 The above -noted policy of insurance must provide that the coverage shall stay in force and not be amended, cancelled or allowed to lapse without thirty (30) days prior written notice being given to the City. 7.3 Proof of Insurance 7.3.1 The Investigator shall provide the City with proof of the insurance required by this Contract in the form of valid certificate of insurance that reference this Contract and confirm the required coverage, on or before the commencement of this Contract, and renewal replacements on or before the expiry of any such insurance. 7.3.2 The Investigator shall ensure that each of its Subcontractors complies with the insurance requirements set out in this Contract by obtaining similar types of insurance and providing the Investigator with proof of the acquisition and maintenance of such insurance. 7.4 Extent of this Section 41 7.4.1 Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Contract, or the extent to which the Investigator may be held responsible for payments of damages to persons or property. 8.0 TERMINATION, CESSATION, EXPIRY AND EXTENSION 8.1 Termination 8.1.1 The City may immediately terminate this Contract upon giving written notice to the Investigator where: (a) The Investigator makes an assignment for the benefit of its creditors, is declared bankrupt or commits an act of bankruptcy, becomes insolvent, makes a proposal or otherwise takes advantage of provisions for relief under the Bankruptcy and Insolvency Act (Canada) or similar legislation in any jurisdiction, or any other type of insolvency proceedings being commenced by or against the Investigator under the Bankruptcy and Insolvency Act (Canada) or similar legislation; (b) The Investigator breaches any material provision of this Contract or any provision in Section 6.0 of this Contract; (c) The Investigator breaches the Conflict of Interest paragraph in Section 2.7 of this Contract; (d) In the City's reasonable opinion, the Investigator, prior to or after executing this Contract, makes a material misrepresentation or omission or provides materially inaccurate information to the City; (e) The Investigator undergoes a change of control which, in the reasonable opinion of the City, adversely affects the Investigator's ability to satisfy some or all of its obligations under this Contract; (f) The Investigator subcontracts for the provision of part or all of the Work and Deliverables or assigns this Contract without first obtaining the written approval of the City; or (g) In the City's reasonable opinion, the Investigator's acts or omissions constitutes a substantial breach of Investigator's obligations under this Contract; and The above rights of termination are in addition to all other rights of termination available at law, or events of termination by operation of law. 42 -19- 8.2 Rectification 8.2.1 Where the Investigator fails to comply with any of its obligations under this Contract, the City may issue a rectification notice to the Investigator setting out the manner and time -frame for rectification. Within seven (7) Business Days of receipt of that notice the Investigator shall either: (a) Comply with that rectification notice; or (b) Provide a rectification plan satisfactory to the City. 8.2.2 If the Investigator fails to either comply with that rectification notice or provide a satisfactory rectification plan, the City may immediately terminate this Contract. 8.2.3 Where the Investigator has been given a prior rectification notice, any subsequent instance of non - compliance by the Investigator in respect of such obligations shall allow the City to immediately terminate this Contract. 8.3 Payment upon Termination 8.3.1 The City shall only be responsible for the payment of the Work and Deliverables provided under this Contract up to and including the effective date of any termination. Termination shall not relieve the Investigator of its warranties and other responsibilities relating to the Work and Deliverables performed or money paid. 8.3.2 In addition to its other rights of hold back or set off, the City may hold back payment or set off against any payments owed if the Investigator fails to comply with its obligations on termination. For greater certainty, under no circumstances shall the Investigator be entitled to payment from the City for or in respect of any foregone or projected profits, revenue, or income or other indirect or consequential losses or damages resulting or arising directly or indirectly from any termination of this Contract. 8.4 Cessation of Investigators Obligations under Schedule 2 8.4.1 The City reserves the right to direct the Investigator to cease any activities identified in Schedule 2 of this Contract, without cause and at its sole discretion, upon thirty (30) days prior written notice to the Investigator. Should notice be provided under this Subsection 8.4.1, the Investigators shall immediately cease carrying out any continued Work and Deliverables under this Contract and shall immediately proceed with the completion of the Obligations on Cessation stipulated in Subsection 8.5.1 of this Contract. 43 -20- 8.5 Obligations on Cessation 8.5.1 The Investigator shall, following the giving of a notice of termination by the City hereunder or upon expiry of the terms, in addition to its other obligations under this Contract and at law: 8.5.1.1 Provide the City with a report detailing: (i) The current state of the Work and Deliverables by the Investigator at the date of termination; and (ii) Any other information requested by the City pertaining to the provision of the Work and Deliverables and performance of this Contract; 8.5.1.2 Execute such documentation as may be required by the City to give effect to the termination of this Contract; and 8.5.1.3 Comply with any other instructions provided by the City, including but not limited to instructions for facilitating the transfer of its obligations to another Person if required. 8.6 Rights and Remedies 8.6.1 The express rights of termination in this Contract are in addition to and shall in no way limit any rights or remedies of the City under this Contract or Applicable Laws or otherwise, at law or in equity. 9.0 DISPUTE RESOLUTION 9.1 Dispute Resolution Procedure 9.1.1 All Disputes shall be resolved in accordance with Schedule 3 of this Contract. 9.2 Retention of Rights 9.2.1 It is agreed that no act by either Party shall be construed as a renunciation or waiver of any rights or recourses provided the Party has given the notices required and has carried out the instructions as provided in Schedule 3. 10.0 GOVERNING REGULATIONS 10.1 Laws and Notices 10.1.1 The Parties shall comply with Applicable Laws which are or become in force during the performance of the Work and Deliverables and which relate to the Work and Deliverables, provided that the Applicable Laws shall not apply retroactively. In the event that a Party is required to perform work that may, in the 44 -21 - Party's reasonable opinion, be contrary to Applicable Laws that Party shall notify in writing, and obtain direction from, the other Party. 10.1.2 If the Party (a "defaulting Party ") fails to notify the other Party (a "non- defaulting Party ") in writing, fails to obtain direction as required in Clause 10.1.1, and performs the Work and Deliverables knowing it to be contrary to Applicable Laws, the defaulting Party shall be responsible for and shall correct the violations thereof and shall bear the Direct Losses attributable to the failure to comply with the provisions of such Applicable Laws. 10.2 Workers' Compensation 10.2.1 If applicable, on or before the commencement of this Contract, the Investigator shall provide evidence of compliance with workers' compensation legislation from WorkSafeNB, including payments due under it, and renewal replacement on or before the expiry of such workers' compensation legislation. 10.2.2 The Investigator shall provide the City such evidence of compliance by the Investigator and Subcontractors and any other person performing the Work and Deliverables who is required to comply with such legislation. 10.3 Miscellaneous 10.3.1 The Parties and each of them shall at all times and from time to time hereafter and upon every reasonably written request to do so, make, do, execute, deliver or cause to be made, done, executed and delivered all such further documents, acts, deeds, assurances and things as may be required to more effectively implement and carry out the true intent and meaning of this Contract. 10.3.2 Either Party (the "Waiving Party ") may from time to time, by instrument in writing and in its sole discretion, waive in whole or in part any default, breach, non - performance or non - observance by the other Party (the "Obligated Party ") of any of the covenants or obligations to be observed or performed under this Contract. Any such waiver may be retroactive but, in any event, shall only apply and extend to the specific matter forming the subject of such waiver, shall only extend to the Waiving Party and shall not otherwise affect or prejudice the right of the Waiving Party to require the due and strict observance or performance by the Obligated Party of such covenant or obligation thereafter or any other covenant or obligation in favour of the Waiving Party to be observed or performed by the Obligated Party under this Contract (including in the case of a partial or limited waiver, the observance or performance of that part of such covenant, or obligation not waived thereby). 10.3.3 Time shall be of the essence of this Contract. 10.3.4 This Contract may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Contract and all of which, when taken 45 -22- together, will be deemed to constitute one and the same Contract. The exchange of copies of this Contract and of signature pages by facsimile or electronic transmission shall constitute effective execution and delivery of this Contract as to the Parties and may be used in lieu of the original Contract for all purposes. Signatures of the Parties transmitted by facsimile or electronic transmission shall be deemed to be their original signatures for all purposes. [The remainder of this page is intentionally left blank] 46 -23- IN WITNESS WHEREOF Investigative Solutions Network Inc. has caused this Contract to be executed by its corporate name and The City of Saint John has caused this Contract to be executed in its corporate name in the manner prescribed by the Municipalities Act, R.S.N.B. 1973, c. M -22, and amendments thereto. SIGNED, SEALED & DELIVERED In the presence of: 47 Investigative Solutions Network Inc. Per: David Perry - CEO I have authority to bind the Investigator Investigative Solutions Network Inc. Per: Ron Wretham I have authority to bind the Investigator THE CITY OF SAINT JOHN Mel K. Norton, Mayor Elizabeth A. Gormley, Common Clerk Common Council Resolution: -24- PROVINCE OF ONTARIO We, Ron Wretham and David Perry of the City of Pickering and Province of Ontario, MAKE OATH AND SAY: 1. That we are both corporate officers of Investigative Solutions Network Inc. named in the foregoing instrument and have custody of the corporate seal of the said Corporation and we are duly authorized to make this affidavit. 2. That the corporate seal affixed to the foregoing Contract and purporting to be the corporate seal of Investigative Solutions Network Inc., is the corporate seal of Investigative Solutions Network Inc., named in the foregoing instrument and it was affixed by the officers authorized to so affix the seal. 3. That the signature of "Ron Wretham" and "David Perry ", are the signatures, and that we are duly authorized to execute the said instrument for Investigative Solutions Network Inc. 4. THAT the said document was executed as aforesaid at the City of Pickering in the Province of Ontario on the day of October, 2012. SWORN TO before me at Toronto, in the Province of Ontario the day of October, 2012. Commissioner of Oaths, (As to both signatures) David Perry Ron Wretham EN -25- SCHEDULE1 FEES AND DISBURSEMENTS Notwithstanding anything else in this Contract, the Investigators shall not bill to the City more than the total, cumulative amount of One Hundred Thousand Dollars ($100,000) inclusive of HST for the Fees and Disbursements associated with the Work and Deliverables under this Contract unless and until Common Council approves additional funding by way of resolution. 1. Fees 1.1 The hourly billing rate for each investigator assigned by the Investigator under this Contract shall be One Hundred and Fifty Dollars ($150) per hour (exclusive of HST) to a maximum of ten (10) hours per investigator per day regardless of the number of hours actually worked in any given calendar day. 1.2 The investigator assigned by the Investigator under this Contract shall be Mr. David Perry. Should any additional investigator(s) be required by the Investigator to carry out the Work and Deliverables, such investigator(s) shall only be assigned if he /she /they meet the criteria set out in subparagraph 1.3 of Schedule 1. 1.3 Any additional investigator(s) assigned by the Investigator pursuant to subparagraph 1.2 of Schedule 1 shall have the following minimum qualifications: a. Minimum of ten (10) years policing experience, including considerable experience in sexual abuse or sexual assault investigations; b. Diploma in policing from the Ontario Police College or equivalent; C. Case management experience and meticulous organizational skills, and d. In the professional judgment of the Investigator, generally possessed of the skills and competencies necessary to carry out or assist in the carrying out of the Work and Deliverables. 2. Disbursements 2.1 When Mr. Perry and /or Mr. Wretham (and /or any other investigator assigned by the Investigator in accordance with subparagraph 1.2 of Schedule 1) are required to visit Saint John to carry out any of the Work and Deliverables under this Contract, the following expenses shall be paid by the City: a. Return economy class airfare(s) between Saint John, New Brunswick and Toronto, Ontario; 49 -26- b. Standard accommodations rates; C. Reasonable car rental fees; d. A per diem of Sixty Five Dollars ($65.00) per investigator to cover meals; e. reasonable administrative costs, including printing and binding of reports, courier services and transcription costs; 2.2 Should other administrative costs arise that are not identified in subparagraph 2.1(e) of Schedule 1 and should such administrative costs individually exceed One Thousand Dollars ($1,000) inclusive of HST, prior written approval shall be required, sought and obtained by the Investigator from the City's Representative. Should total transcription costs exceed Twenty Thousand Dollars ($20,000), prior written approval shall be required, sought and obtained by the Investigator from the City's Representative. -27- SCHEDULE2 WORK AND DELIVERABLES 1. Background Context 1.1 In or about January of 2012, an individual came forward with an allegation(s) of sexual abuse regarding former City employee, Mr. Kenneth Estabrooks. Mr. Estabrooks, now deceased, was employed by the City between 1953 and 1983, inclusive (the "Timeframe "). The subject matter of the complaint dates back several years and is historical in nature. The Investigator was hired by the City in or about February of 2012 to follow up on the complaint. 2. Purpose and Scope 2.1 The purpose of the Investigator's work is two -fold: a. To provide an arms - length investigation regarding allegation(s) of sexual abuse that have or may come forward respecting Mr. Estabrooks during the Timeframe, and b. To be a point of /avenue of contact for those individual(s) who have or may come forward with allegation(s) of sexual abuse by Mr. Estabrooks that are alleged to have occurred or arisen during the Timeframe and to offer to certain of such individual(s) a 1 -800 number for confidential counseling services that have been arranged by the City through a third party service provider should they wish to avail themselves of same, subject to any limits that the City may impose now or in the future regarding such confidential counseling services. 2.2 The work of the Investigator will discretely focus on and be limited to the work generally identified subparagraphs 2.1(a) and (b) of Schedule 2. It is not the mandate of the Investigator to carry out an "Inquiry" or what might be considered an "Inquiry" regarding Mr. Estabrooks, nor is it the mandate of the Investigator to revisit or re- examine any past criminal or regulatory investigations regarding Mr. Estabrooks. 2.3 Any and all allegation(s) that have or may come forward regarding allegations of sexual abuse by Mr. Estabrooks shall be considered on a case by case basis; however, the City intends for the work of the Investigator to be inclusive of any and all allegation(s) that are alleged to have occurred or arisen during the Timeframe. 2.4 As the work of the Investigator proceeds, the Work and Deliverables may be reviewed by the City to assess the level of resources required to support the 51 -28- work of the Investigator and, if the City decides that changes to the Work and Deliverables are warranted, such changes shall be made in accordance with Subsection 5.1 of this Contract. 3. The Investigator's Responsibilities 3.1 The Investigator shall pursue and carry out the Work and Deliverables generally described in subparagraphs 2.1(a) and (b) of Schedule 2. In doing so, the Investigator's responsibilities shall include at minimum but not necessarily be limited to the following: a. Establishment, management and organization of all communications including phone, email, and in person communications with any all individual(s) who have or may come forward with allegation(s) of sexual abuse by Mr. Estabrooks; b. Interviews with any and all individual(s) who come forward with information regarding and /or allegations of sexual abuse by Mr. Estabrooks; c. Use and apply their experience, training and professional judgment as former police officers to interview any and all individual(s) who have or may come forward with allegation(s) of sexual abuse by Mr. Estabrooks. By applying the civil standard, known as the "balance of probabilities ", the Investigator shall investigate and evaluate the allegation(s) which are communicated to them by any and all individual(s) who have or may come forward with allegation(s) of sexual abuse by Mr. Estabrooks and shall reach preliminary conclusions respecting the veracity /legitimacy of any allegation(s) advanced and, as a result, whether such individual(s) should be referred to the confidential counseling services referenced in subparagraph 3.1(d) of Schedule 2. The Investigator and the City recognize that none of the investigators are psychiatrists or psychologists and that the Investigator's preliminary conclusions respecting the veracity of any allegation(s) of sexual abuse by Mr. Estabrooks may well be found by such a recognized mental health professional to be incorrect. d. In accordance with subparagraph 3.1(c) of Schedule 2, offering to certain individual(s) who come forward with allegation(s) of sexual abuse by Mr. Estabrooks a 1 -800 number for confidential counseling services that have been arranged by the City through a third party service provider should they wish to avail themselves of same. Where individual(s) who are or have been referred to confidential counseling services are reluctant to avail themselves of such services, the Investigator shall encourage such individual(s) to do so; e. Where certain individual(s) who come forward with allegation(s) of sexual abuse by Mr. Estabrooks have been referred to the confidential counseling 52 -29- services referenced in subparagraph 3.1(d) of Schedule 2, the Investigator shall follow up with such individual(s) as required to inquire regarding their progress; f. Regular communications with the City's Representative, as required; g. Advice to the City respecting media briefing(s) and media inquires, as required; h. Acting as a media spokesperson and point of contact on all media inquiries in coordination with the City's Representative subject to the requirement of this Contract respecting City Confidential Information. In addition to the general requirements under this Contract respecting the City Confidential Information, at no point shall the Investigator divulge any information which discloses the identity of a complainant or, when combined with any other information, could cause the identity of a complainant to be determined; Preparation and delivery of an interim and a final report for the City's Representative and any other reports that may be required by the City's Representative from time to time. The interim report shall be delivered at the earliest possible date and, in any event, not later than March 20th, 2013. Notwithstanding the foregoing, the Investigator shall be required to provide an interim report to the City Manager immediately should the One Hundred Thousand Dollar ($100,000) budget limit specified in Schedule 1 be reached; j. Effective management, coordination and completion and delivery of the Work and Deliverables. k. Should the Investigator, in the course of carrying out the Work and Deliverables, be advised of information that could potentially be the subject matter of criminal proceedings, the Investigator shall, in accordance with standard procedures and exercising sound professional judgment, refer such matter to the appropriate authorities. 4 The City's Responsibilities 4.1 The City, under the direction of the City's Representative, shall be responsible for responding to inquiries that the Investigator may have regarding the Work and Deliverables, as required. The City's Representative shall be the primary point of contact for the Investigator and will identify in writing and arrange access and regular communications with other members of City staff, as required, should it be necessary for the Investigator to liaise with such members of City staff to assist with its carrying out of the Work and Deliverables. 53 -30- 4.2 The City's Representative shall arrange for and provide day -to -day coordination and administration with the assistance of other members of City staff to support the Investigator, as required, and shall arrange for any meetings or discussions between the City's Representative and /or other members of City staff and the Investigator to be documented in writing. 4.3 Any and all media briefing(s), including their substantive dimensions, content, ambit and parameters, shall be coordinated, arranged and determined by the City's Representative, and the Investigator shall assist the City's Representative as required. 5.0 Communications 5.1 The subject matter of this Contract is sensitive and confidential. Accordingly, any public communications that may touch on or otherwise address the subject matter of this Contract in any way shall be carried out in a manner that is consistent with the sensitivity and confidentiality of the subject matter. At no point shall the Investigator or the City divulge any information which discloses the identity of a complainant or, when combined with any other information, could cause the identity of a complainant to be determined; 5.2AI1 communications and media briefings respecting the subject matter of this Contract shall be managed by the City's Department of Strategic Services under the direction of the City's Representative and in coordination with the Mayor's Office. Only the following designated spokespeople shall have any contact with the media regarding the subject matter of this Contract: the Mayor, The City Manager or the Investigator. 5.3 Under the direction of the City Manager, the City's Communications Office shall deliver internal communications, as required, to assist the Investigator with the Work and Deliverables. For example, the City shall ensure that if frontline City Staff are contacted by any individual(s) wishing to speak to the Investigator that they have the contact information of the Investigator available. 5.4 No comment shall be made by the Investigator to the media unless such comment has first been vetted and approved by the City's Representative. Any media requests made to the Investigator should be referred without comment to the City's Representative. 6. Deliverables 6.1 In addition to the duties and responsibilities identified in Section 3 above, the Investigator shall be responsible to provide the following deliverables to the City: 54 - 31 - subparagraph 3.1(i) of Schedule 2), and which shall provide a progress update regarding the following: An overview of the nature, number and status of the interviews conducted with those individual(s) who have or may come forward with allegations regarding Mr. Estabrooks and an overview of the resulting referrals to confidential counseling services completed as of that date; ii. Recommendations, if any, for further internal or external communications; iii. Any proposed /recommended modifications to the Work and Deliverables; iv. A detailed accounting of Fees and Disbursements charged to date; and V. A recommended timeframe and budget estimate for completion of the Work and Deliverables. b. A final report at the completion of the investigation. This final report shall include the following: L An executive summary of the key findings and recommended actions moving forward; ii. A summary of the allegation(s) of each and every individual(s) who has or may come forward, with the exception of their name or any identifying information; iii. Professional advice from the Investigator regarding the allegation(s) summarized; iv. Obtain from the City's Representative and identify in a progress report on the number of individuals who are receiving or have received confidential counseling services from the third party provider arranged by the City and recommendations concerning any future requirements in terms of confidential counseling services; v. Should any allegation(s) of sexual abuse by Mr. Estabrooks be reported to the City following the submission by the Investigator of the final report referred to in subparagraph 6.1(b) of Section 2, the Investigator shall, if requested by the City, make recommendations respecting further investigation and follow up. -32- the Investigator shall, if requested by the City, make recommendations respecting further investigation and follow up. vi. Advice, if any, respecting a further /final media briefing vii. Recommendations for preventative policy or procedural reforms related to investigative matters that could be implemented in the future to address fundings from the process. 7.0 Confidentiality 7.1 The Investigator and the City recognize that the confidentiality of the information provided by individual(s) who have or may come forward with allegation(s) of sexual abuse regarding Mr. Estabrooks shall be protected; however, should any individual(s) who have or may come forward with allegation(s) of sexual abuse regarding Mr. Estabrooks institute civil proceedings against the City, any confidential information provided by such individual(s) to the Investigator shall be available to be used by the City in association with such civil proceedings and shall, if deemed necessary by the City, cease to be confidential. The Investigator shall communicate this qualification at the outset of any interview it may conduct with any and all individual(s) who have or may come forward with allegation(s) of sexual abuse regarding Mr. Estabrooks and shall confirm with such individual(s) that he or she understands such qualification. 7.2 Subject to subparagraph 7.1 of Schedule 2, in order to ensure that the confidentiality of individual(s) who have or may come forward with allegation(s) of sexual abuse by Mr. Estabrooks is protected: only the Investigator shall maintain all direct contact with such individual(s), and the interviews conducted by the Investigator with such individual(s) shall be documented in a confidential manner protecting the identity of such individual(s). 7.3 Where the Investigator requires contact with the City on the identity of individual(s) who have or may come forward with allegation(s) of sexual abuse regarding Mr. Estabrooks, the contact shall be made only to the City Manager through confidential phone or in person communications. 7.4 At the conclusion of the investigation, one copy of a Confidential Appendix containing the names of all individual(a) who have or may come forward with allegation(s) of sexual abuse regarding Mr. Estabrooks shall be confidentially provided by the Investigator to the City Manager as a confidential record of the investigation. 56 -33- SCHEDULE 3 DISPUTE RESOLUTION PROCEDURE A. Referral to Senior Management 1. All disputes arising out of, or in connection with, this Contract, or in respect of any legal relationship associated with or derived from this Contract, shall within two (2) Business Days of notice from one Party to the other be referred for resolution to the City Manager and the Provincial Representative. 2. If the City Manager and Provincial Representative are not able to resolve the dispute referred to them under this Section within seven (7) Business Days following such referral, the matter shall be referred for resolution by way of mediation upon the willingness of the Parties. B. Mediation 1. A Party may apply to a court of competent jurisdiction or other competent authority for interim measures of protection at any time. 2. If the Parties resolve to mediate the dispute referred to them under Section A -2, the Parties shall invoke the following mediation process: B.2.1 either Party shall immediately declare an impasse and provide written notice to the other within seven (7) Business Days thereof (or such other period as the Parties mutually prescribe) declaring that such Party wishes to proceed to mediation and setting out in reasonable detail the issue(s) to be resolved, the proposed time and a list of at least three (3) and not more than five (5) proposed mediators. Each of the proposed mediators shall be an individual: (i) with at least three years' experience working in an executive capacity or representing clients in the area of public disputes; and (ii) unless otherwise agreed by the Parties, with no prior connection, affiliation or other formal relationship with either Party. B.2.2 upon receipt of such notice, the notified Party shall have two (2) Business Days to select one of the proposed mediators as the mediator, failing which the Party providing notice shall select one of its proposed mediators as the mediator. Within ten (10) Business Days following selection of the mediator the matter shall be heard by the mediator; and 57 -34- B.2.3 the mediator shall be entitled to establish his or her own practices and procedures. Each Party shall co- operate fully with the mediator and shall present its case to the mediator orally and /or in writing within ten (10) Business Days following the mediator's appointment. The mediation shall not be in the nature of arbitration as contemplated by the Arbitration Act (1992) and the mediator's decision shall not be binding upon the Parties, but shall be considered as a bona fide attempt by the mediator to judiciously resolve the dispute. The decision of the mediator shall be rendered in a written report, not to exceed two (2) pages in length, delivered to the Parties within ten (10) Business Days following the last of such presentations. The fees of the mediator shall be shared equally by the Parties. 3. The mediation shall be terminated: B.3.1 by the execution of a settlement Contract by the Parties; or B.3.2 by a written declaration of one or more Parties that the mediation is terminated; or B.3.3 by a written declaration by the mediator that further efforts at mediation would not be useful. 4. The place of mediation shall be the City of Saint John and Province of New Brunswick. C. Arbitration 1. In the event that the Parties are unwilling to mediate their dispute or that the dispute between the Parties remain unresolved after mediation has been attempted in good faith, then either the City or the Province, upon written notice to the other, may refer the dispute for determination to a Board of Arbitration consisting of three persons, one chosen by and on behalf of the City, one chosen by and on behalf of the Investigator and the third chosen by these two. 2. In case of failure of the two arbitrators appointed by the Parties hereto to agree upon a third arbitrator, such third arbitrator shall be appointed by a Judge of the Court of Queen's Bench of New Brunswick. 3. Any determination made by the Board of Arbitration shall be final and binding upon the Parties and the cost of such determination shall be apportioned as the Board of Arbitration may decide. 4. No one shall be appointed or act as arbitrator who is in any way interested, financially or otherwise, in the conduct of the work or in the business or other affairs of either Party. W -35- 5. The Board of Arbitration may encourage settlement of the dispute and, with the written Contract of the Parties, may order that mediation, conciliation or other procedures be used by the Parties at any time during the arbitration proceedings to encourage settlement. 6. If, during the arbitration proceedings, the Parties settle the dispute, the Board of Arbitration shall, upon receiving confirmation of the settlement or determining that there is settlement, terminate the proceedings and, if requested by the Parties, record the settlement in the form of an arbitration award on agreed terms. 7. The place of arbitration shall be the City of Saint John and Province of New Brunswick and the provisions of the Arbitration Act (1992) shall apply to the arbitration. 59