HomeMy WebLinkAboutBy-law No. 2014-092 THE CORPORATION OF THE
MUNICIPALITY OF BAYHAM
BY-LAW NO. 2014-092
A BY-LAW TO AUTHORIZE THE EXECUTION OF AN AGENCY AGREEMENT
BETWEEN THE MUNICIPALITY OF BAYHAM AND
FIRE MARQUE INC.
WHEREAS the Council of the Corporation of the Municipality of Bayham is desirous of entering into
an agency agreement with Fire Marque Inc. regarding cost recovery for emergency services
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY
OF BAYHAM ENACTS AS FOLLOWS:
1. THAT the Mayor and Clerk be and are hereby authorized to execute the Agency Agreement
attached hereto as Schedule"A"and forming part of this by-law between Fire Marque Inc. and
the Municipality of Bayham
2. THAT Schedule "E" (Bayham Fire and Emergency Services Fee Schedule) be amended to
include:
Service Fee
Fire Response Fees—Indemnification Technology® Current MTO rates plus
personnel/hour plus any costs
incurred by the Municipality
3. THAT this by-law shall come into full force and effect upon final passing.
READ A FIRST, SECOND AND THIRD TIME AND FINALLY PASSED THIS 21't DAY
OF ALTGUST,2014.
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I R CLERK
J
This Agreement made the 21st day of August, 2014
AGENCY AGREEMENT
(Herein after referred to as the `Agreement")
The Agreement made
BETWEEN:
FIRE MARQUE INC.
(herein after referred to as the "Agent")
AND
The Corporation of the Municipality of Bayham
(Herein after referred to as the "Municipality")
WHEREAS the Municipality Fire Department attends, when required, at incident sites to
provide emergency services;
AND WHEREAS the costs and expenses incurred by the Municipality Fire Department
as a result of attending at the Incident Sites and providing services may be recoverable
through Indemnification Technology® with respect to insured perils through the
insurance policies of the owner or tenant of the Incident Site;
AND WHEREAS the Municipality wishes to appoint the Agent, as its agent for the
purpose of filing claims ("Claims") on behalf of the Municipality and to recover, on their
behalf, any insurance proceeds from the insurers of the affected parties which are
recoverable in accordance with the terms of any policy agreement for the costs and
expenses incurred by the Fire Department as a result of attending at the Incident Sites.
AND WHEREAS the Agent wishes to make the Claims and recover the recoverable
proceeds of insurance on behalf of the Municipality in accordance with the terms and
conditions set forth herein;
NOW THEREFORE, in consideration of the mutual terms and covenants herein
contained, the Parties covenant and agree as follows:
1. DEFINITIONS
(a) "Agreement" is the mutual understanding with respect to the rights, duties and
obligations with one another;
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(b) "Agency Fee" is the financial compensation expressed as a percentage of the
recovered Emergency Cost Recovery Proceeds excluding taxes;
(c) "Agency Fee Taxes" are the HST or GST, and any other value added taxes as
defined under the Tax Act;
(d) "Agent" is Fire Marque Inc.;
(e) "Claims" an amount requested for payment for an insured loss which falls under
the terms of an insurance contract;
(f) "Emergency Cost Recovery Proceeds" are the funds recovered by the Agent
as a result of filing claims with insurers pursuant to the Insurance Policies of the
owner or tenant of an Incident Site to recover the costs and expenses incurred by
the Municipality Fire Department as result of attending and providing emergency
services at an Incident site;
(g) "Fire Department" means a group of firefighters authorized to provide fire
protection Services by the Corporation of the Municipality of Bayham;
(h) "Incident Reports" are the property statistical fire reports also called Standard
Incident Reports;
(I) "Incident Sites" is the municipal address or property location of the incident
which is attended at by.the Municipality's Fire Department in relation to which the
Municipality's Fire Department incurs costs and expenses as a result of providing
their emergency services;
(j) "Indemnification Technology®" is the intellectual property owned and
employed by the agent in making claims to recover costs and expenses of the
Municipality's Fire Department incurred as result of providing emergency
services at an Incident site and includes: incident reporting, data collection, and
property insurance policy wording interpretation to maximize billing opportunities
on behalf of the Fire Department by invoicing insurance companies for the costs
of fire department attendance with respect to insured perils.
(k) "Indemnities" means the Agent, its directors, partners, officers, agents, and
employees and the Municipality, Party or Parties its employees, servants, agents,
subcontractors or volunteers.
(I) "Initial Term" A time commitment from the signing of this agreement.
(m) "Insurers" as defined in the insurance act.
(n) "Insurance Policies" is a system under which individuals, businesses and other
entities, in exchange for a sum of money called the premium are guaranteed
compensation for losses resulting from certain perils under specific conditions.
(o) "Intellectual Property" is a distinct type of creation for which a set of exclusive
rights are recognized, these rights include copyrights, trademarks, patents and
trade secrets.
(p) "Losses" are the basis for a claim for indemnity under the terms of an insurance
policy.
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(q) "Party' or "Parties" is the Agent and the "Municipality".
(r) "Municipality" is the municipality entering into the agreement.
(s) "Renewal Term" a three year time commitment after the initial term.
it) "Term" is the Initial Term together with any subsequent Renewal Term;
(u) "Termination Date" is the date the agreement ends.
(v) "Third Party Fire Departments" is a fire department, fire brigade, persons
and/or equipment that are not part of the Municipality Fire Department.
2. TERM
The term of this Agreement will begin as of the date hereof August 21, 2014 and
continue for a period of three years (the "Initial Term"). Until terminated in
accordance with Section 14, this Agreement will automatically renew for successive
three years (each a "Renewal Term") upon the expiry of the Initial Term or any
preceding renewal period (the Initial Term and any subsequent Renewal Terms are
hereinafter collectively referred to as the "Term").
3. APPOINTMENT
The Municipality hereby appoints the Agent as its exclusive agent during the Term of
this Agreement for the purpose of filing, on behalf of the Municipality, all claims with
insurers and to recover from any insurers on their behalf, any proceeds of insurance
which are recoverable in accordance with the terms of any policy agreement of an
owner or the tenant at any Incident Site.
4. AGENT OBLIGATIONS
During the term of the Agreement, the Agent agrees:
(a) To proceed diligently to prepare and file claims with the insurer of the
incident sites on behalf of the Municipality upon receipt of the Incident
Reports from the Municipality's Fire Department;
(b) To establish and maintain an interest bearing trust account to receive and
hold any actually recovered proceeds of insurance (the "Emergency Cost
Recovery Proceeds") in trust on behalf of the Municipality (which proceeds
may be comingled with the proceeds recovered for other municipalities
and/or fire departments, for which Agent is providing similar services);
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(c) To remit on a quarterly basis or such period as agreed to between the
Agent and the Municipality, the Emergency Cost Recovery Proceeds to
the Municipality, less any Agency Fee, and Agency Fee Taxes deducted
in accordance with Sections 6 and 7.
(d) To deliver a statement to the Municipality providing reasonable details in
regards to the amounts being remitted for the applicable period; and
(e) To maintain complete, detailed and adequate books and records
pertaining to claims and Emergency Cost Recovery Proceeds.
5. MUNICIPALITY'S OBLIGATIONS
During the Term of the Agreement, the Municipality agrees:
(a) on a monthly basis or such period as agreed to between the Municipality and
Agent, to provide the Agent with all the completed Standard Incident Reports
relating to its attendance at all Incident Sites during the period, setting forth in
reasonable detail the services provided and the costs and expenses incurred
by the Municipal Fire Department in attending such Incident Sites and
providing information as to the applicable insured, the insurance company
and the policy number of the Incident Site, if available;
(b) In accordance with the insurance policies ensure that the Emergency Cost
Recovery Proceeds that are remitted to the Fire Department are used by the
Fire Department for its own purposes, which purposes may include but not be
limited to the following:
(i) the purchase of equipment for the Fire Department; and/or
(ii) the provisions of training and education to the firefighters of the Fire
Department; and/or
(iii)the purchase and/or provision of materials and equipment for fire
inspection, fire prevention and public education programs and
(c) if requested to provide the Agent with documentation evidencing that the
Municipal Fire Department is the sole beneficiary of any Emergency Cost
Recovery Proceeds that have been remitted to the Municipality in accordance
with Section 4.
6. AGENCY FEE
In consideration for the services provided by the Agent pursuant to the agreement,
during the Initial Term, the Agent will be entitled to a fee equal to thirty (30%) of all
Emergency Cost Recovery Proceeds (the "Agency Fee"). The Agent will be entitled,
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on a monthly basis, to invoice the Municipality for the Agency Fee accrued in respect
of the previous month Emergency Cost Recovery Proceeds and to deduct the
Agency Fee from the Emergency Cost Recovery Proceeds. The Agent shall not be
entitled to any further consideration from the Municipality or the Municipality Fire
Department. The amount of the Agency Fee shall be negotiated by the Parties for
any Renewal Terms.
7. TAXES
It is understood by the parties that the Agency Fee is exclusive of all taxes, duties
and other charges (including any GST, HST or other value added taxes), ("Agency
Fee Taxes"), applicable to the services provided by the Agent hereunder. The Agent
shall withhold and deduct from the Emergency Cost Recovery Proceeds that are to
be remitted to the Municipality's Fire Department, any Agency Fee Taxes, and all
such Agency Fee Taxes will be remitted to the applicable government agency, as
and when required.
8. INTELLECTUAL PROPERTY
The Municipality agrees and acknowledges that any intellectual property of the
Agent, including but not limited to any software, trade-names, trade-marks, and
copyrighted materials and any of the foregoing as it relates to Indemnification
Technology® are the property of the Agent, and the Municipality has no rights to this
Intellectual Property as a result of this agreement or otherwise.
9. AUDIT
The Municipality has the right to audit, at its own expense, the records and accounts,
during reasonable business hours and on advance written notice to the Agent; and,
for up to twenty-four (24) Months from the end of the calendar year to which the
records and accounts relate.
10. UNRECOVERABLE EXPENSES
No action will be undertaken by Fire Marque Inc. to collect any proceeds or file any
claims on behalf of the Municipality. The Fire Department will only be entitled to
receive Emergency Cost Recovery Proceeds actually recovered by Fire Marque Inc.
on behalf of the Municipality. The Municipality, at its own discretion, may elect to
enforce the payment of the Emergency Cost Recovery Proceeds not recovered by
Fire Marque through powers granted by their By-Laws or through litigation.
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11. INCIDENTS ATTENDED TO BY OTHERS
It is acknowledged by the Parties that in certain instances, in addition to the
Municipality Fire Department, other fire departments or other emergency personnel
("Third Party Fire Departments") may attend at an Incident Site and whose costs and
expenses incurred as result of attending and providing emergency services at such
Incident Site may also be recoverable under the Insurance Policies of the owner(s)
or tenant(s) of such Incident Site. In such cases:
(a) the Municipality acknowledges that the Emergency Cost Recovery
Proceeds recovered in respect of such Incident Site may have to be
shared with the Third Party Fire Departments, and Agent makes no
representation and will not be required take any action to determine the
appropriate allocation of such Emergency Cost Recovery Proceeds
between the Municipality Fire Department and the Third Party Fire
Departments.
(b) the Municipality shall negotiate an appropriate allocation of the Emergency
Cost Recovery Proceeds with the Third Party Fire Departments. If the
Municipality and the Third Party Fire Departments are unable to agree to
an appropriate allocation within a reasonable time, then Agent may, in its
sole discretion but without obligation to do so, and on notice to
Municipality, commence interpleader or a similar action or proceeding in
connection with any dispute in relation to allocation of the Emergency Cost
Recovery Proceeds and pay the Emergency Cost Recovery Proceeds into
court, whereupon the Agent shall be released from any further obligations
in respect of such Emergency Cost Recovery Proceeds and the
Municipality shall indemnify and hold harmless the Agent from any dispute
arising with respect to such Emergency Cost Recovery Proceeds whether
the Agent is acting as agent on behalf of the Third Party Fire Departments
to the dispute or otherwise.
12. LIMIT ON LIABILITY
Other than Emergency Cost Recovery Proceeds actually recovered, the Agent will
not be liable to the Municipality for any costs and expenses incurred as a result of
the Municipality Fire Department attending and providing emergency services at an
Incident Site which it was unable to recover through the insurance policy of the
owner or tenant of such services
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13. INDEMNIFICATION
The Municipality and the Agent agree to indemnify and save harmless each other
from and against any loss, damage, claim, demand, cost, action, suit, expense or
liability whatsoever whether in respect to losses suffered by a Party or in respect to
claims by third parties that arise out of, or are attributed in any respect to, their
involvement as Parties to this Agreement, that the other may incur, suffer or be
required to pay pursuant to any claim, demand, action, suit, litigation, charge,
complaint, prosecution or other proceeding that may be made or asserted against or
affect the party indemnified by reason of wrongful or negligent act or omission on the
part of the indemnifying party, its employees, servants, agents, subcontractors or
volunteers in the performance or rendering services. The obligation of either party to
indemnify as set forth in this paragraph shall survive the termination of this
Agreement for any reason.
14. TERMINATION
Notwithstanding Section 2, this Agreement will terminate with 30 days' written notice
by either Party, provided that if this Agreement is terminated (other than as a result
of a material breach of this Agreement by the Agent), the Agent shall be entitled to
continue filing all Claims and collecting Emergency Cost Recovery Proceeds, for any
incidents attended to by the Municipality Fire Department at Incident Sites which
occurred prior to the date of the termination date of this Agreement, and such filings
and recoveries shall remain subject to the terms and conditions of this Agreement.
The Municipality or the Municipality Fire Department shall not make claims in
respect of any incidents attended to by the Municipal Fire Department which
occurred prior to the effective date of termination. The covenants set forth in this
Section 14 shall survive the termination of this Agreement.
15. NOTICES
All notices, communications, statements and payments which may be required or
permitted under this Agreement will be in writing and sent by registered mail, courier
services, or transmitted by facsimile or other electronic means which produces a
physical copy. Any party may change its address by notice to the other parties.
The addresses of the parties pursuant to this Section 15 are as follows:
if to the Municipality,
PO Box 160,9344 Plank Road
Straffordville, ON NOJ 1Y0
Phone: 519-866-5521
Fax: 519-866-3884
Attention: Fire Chief Randy White
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if to the Agent
Fire Marque Inc.,
P.O. Box 2018, Thornton, ON LOL 2N0
Phone: 1-855-424-5991 or 705-424-5991
Fax: 705-424-5702
Attention: Ted K. Woods
16. SEVERABILITY
If any provision of this Agreement is determined to be illegal, invalid or
unenforceable by an arbitrator or any court of competent jurisdiction from which no
appeal exists or is taken, that provision will be severed from this Agreement and the
remaining provisions will remain in full force and effect.
17. ARBITRATION
All disputes, controversies and disagreements with respect to this Agreement, or any
matter arising under or in connection with this Agreement, shall be finally settled by
arbitration. Arbitration shall be conducted as follows:
(a) the reference shall be to a single arbitrator appointed in accordance with the
Arbitration Act, 1991, S.O. 1991, C. 17 as amended;
(b) the decision of the arbitrator shall be final, conclusive and binding upon all
parties;
(c) unless otherwise determined by the arbitrator, the Parties shall pay an equal
portion of the fees and expenses of the arbitrator; and
(d) the Arbitration Act, 1991, S.O. 1991, C. 17 shall apply to and govern each such
reference to arbitration; and
(e) All arbitrations shall be conducted in Barrie, Ontario
18. GOVERNING LAW
This Agreement is governed by, interpreted and enforced in accordance with the laws of
the Province of Ontario and the federal laws of Canada applicable in the province.
Subject to Section 17, each of the Parties irrevocably attorns to the exclusive jurisdiction
of the Courts of Ontario.
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19. WAIVER
No waiver of any provision of this Agreement constitutes a waiver of any other
provision.
20. ENTIRE AGREEMENT
Except as stated herein, this Agreement constitutes the entire agreement between the
Parties concerning the subject matter hereof and, during the term hereof, supersedes all
prior written or verbal agreements concerning such subject matter.
21. AMENDMENTS
Amendments to this agreement shall be in writing and be executed by the Parties. If
agreed in writing by both Parties to this agreement an amendment shall form a part of
this agreement.
22. ASSIGNMENT
Neither this Agreement nor any of the rights or obligations under this Agreement are
assignable or transferable by a Party without the prior written consent of the other Party,
provided that nothing herein shall prevent The Agent from assigning this Agreement or
any of its rights or obligations to an affiliate of The Agent, provided that the Agent
agrees to remain liable to the Municipality for the obligations of such transferee affiliate.
23. ENUREMENT
This Agreement shall be binding upon and enure to the benefit of the Parties and their
respective successors.
24. COUNTERPARTS
This Agreement may be executed and delivered in any number of counterparts
(including by facsimile or other electronic transmission) and all counterparts taken
together constitute one and the same instrument.
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25. LEGAL RELATIONSHIP
In this Agreement nothing gives rise to an employment relationship for the provision of
services between the Municipality and Agent. The Parties expressly acknowledge that
they are independent and neither an employer-employee relationship is intended or
created by this Agreement.
26. COLLECTION AND DISCLOSURE OF PRIVATE INFORMATION
Any information collected by the Agent and Principal pursuant to this Agreement is
subject to, and shall be handled in accordance with, the provisions of the Municipal
Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 as
amended and the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.
F.31, as amended.
27. LAWS
The Municipality and Agent, its employees and representatives, if any shall at all times
comply with any and all applicable federal, provincial and municipal laws, ordinances,
statues, rules, regulations and orders in respect of the performance of this Agreement.
28. CONFIDENTIALITY
The Agent shall hold confidential and not disclose or release to any person other than
the Agent and Principal at any time during or following the term of this Agreement,
except where required pursuant to the provisions of the Municipal Freedom of
information and Protection of Privacy Act and/or the Personal Information Protection &
Electronic Documents Act (PIPEDA), any information or document that identifies any
individual or the nature and extent of services received by any individual without
obtaining written consent of the Municipality prior to the release or disclosure of such
confidential information
29. CONFLICT OF INTEREST
The Agent shall disclose to the Municipality without delay any actual or potential
situation that may be reasonably interpreted as either a conflict of interest or a potential
conflict of interest, or breach of law in relation to this Agreement. A breach of this
section by the Agent shall entitle the Principal to terminate this Agreement in addition to
any other remedies that the municipality may have in law or equity.
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IN WITNESS WHEREOF the parties have executed this Agreement as of the date first
above written.
MUNICIPALITY OF FIRE MARQUE INC.
Alozel
Paul s, Mayor Ted K. Woods, President
Lynda Millard, Municipal Clerk Witness
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Alb 1.
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HI' � � - MAL
Indemnification Technology®
August 29th 2014 F Er` EIVE
Municipality of Bayham SEP - 8 201
4
PO Box 160 F P1ICI °:ALIT OF i8,::;aAM
9344 Plank Road
Straffordville, Ontario
NOJ 1Y0
Attention: Brenda Gibbons
Re: By-Law 2014-092
Dear Brenda,
Thank you for your letter of August 25th 2014 enclosing By-Law 2014-092.
As requested attached is the executed agency agreement.
We look forward to working with your Municipality.
Sincerely
1 ,4,//` 164-
Ted K Woods, CET, CIP
tedwoods@firemarque.com
Ends.
East Office www.firemarque.com West Office
P.O. Box 2018 Toll Free: 1-855-424-5991 2050, 11300 Tuscany Blvd.N.W.
Thornton,ON Tel: 705-424-5991 PO Box 27148 Tuscany
LOL 2N0 Fax: 705-424-5702 Calgary,AB T3L 2V0
i
THE CORPORATION OF THE
MUNICIPALITY OF BAYHAM
BY-LAW NO. 2014-092
A BY-LAW TO AUTHORIZE THE EXECUTION OF AN AGENCY AGREEMENT
BETWEEN THE MUNICIPALITY OF BAYHAM AND
FIRE MARQUE INC.
WHEREAS the Council of the Corporation of the Municipality of Bayham is desirous of entering into
an agency agreement with Fire Marque Inc. regarding cost recovery for emergency services
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY
OF BAYHAM ENACTS AS FOLLOWS:
1. THAT the Mayor and Clerk be and are hereby authorized to execute the Agency Agreement
attached hereto as Schedule"A"and forming part of this by-law between Fire Marque Inc. and
the Municipality of Bayham
2. THAT Schedule "E" (Bayham Fire and Emergency Services Fee Schedule) be amended to
include:
Service Fee
Fire Response Fees—Indemnification Technology® Current MTO rates plus
personnel/hour plus any costs
incurred by the Municipality
3. THAT this by-law shall come into full force and effect upon final passing.
READ A FIRST, SECOND AND THIRD TIME AND FINALLY PASSED THIS 21st DAY
OF AUGUST,2014.
4CA—LE
M R CLERK