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HomeMy WebLinkAbout12 142 Fire Marque Inc. (2012) By-law THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE Ar . KBT .. " INOft pe BYLAW NO. 2012 -142 BEING A BY -LAW TO ENTER INTO AN AGREEMENT WITH FIRE MARQUE INC. WHEREAS pursuant to the said Municipal Act, Section 8 (1) and 9 provide that the powers of a municipality under this or any other Act shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality's ability to respond to municipal issues and has the capacity, rights, • powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act; AND WHEREAS Report No. FC 2012 — 02 outlined the services provided by Fire Marque Inc. for the collection of recoverable expenses with respect to insured perils resulting from the Fire Department's attendance at incident sites; AND WHEREAS the Council of The Corporation of the Municipality of Kincardine deems it advisable to enter into an agreement with Fire Marque Inc. to provide the services outlined above; NOW THEREFORE the Council of The Corporation of the Municipality of Kincardine ENACTS as follows: 1. That The Corporation of the Municipality of Kincardine enter into an agreement with Fire Marque Inc. for the for the collection of recoverable expenses with respect to insured perils resulting from the Fire Department's attendance at incident sites. • 2. That the Mayor and Chief Administrative Officer be authorized and directed to execute, on behalf of the Council of The Corporation of the Municipality of Kincardine, the agreement with the Fire Marque Inc. attached hereto as Schedule "A ". 3. This By -law shall come into full force and effect upon its passage. 4. This By -law may be cited as the "Fire Marque Inc. (2012) By -law'. READ a FIRST and SECOND TIME this 21 day of November, 2012. a o Clerk READ a THIRD TIME and FINALLY PASSED this 21st day of November, 2012. • ' ;� ayor Clerk d This is Schedule "A." to By-Law No20'Z -14a passed the 2 1 day of Nourrnher 2012 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 Kincardine (Herein after referred to as the "Municipality") WHEREAS this Agency Agreement (the "Agreement ") dated November 21, 2012, between Fire Marque Inc. (the "Agent ") and The Corporation of the Municipality of Kincardine ( "Municipality") (collectively, the "Parties" or individually, a "Party ") is for the purpose of Indemnification Technology®. AND WHEREAS the Municipality as applicable attends, when required, at incident sites (the "Incident Sites ") to provide their services; AND WHEREAS the costs and expenses incurred as a result of attending at the Incident Sites may be recoverable through Indemnification Technology® with respect to insured perils under the insurance policies of the owner or tenant of the Incident Sites (the "Insurance Policies "); 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; (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, 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 funds recovered from the "Insurance Policies "; (g) "Fire Department" means a group of firefighters authorized to provide fire protection services by the Municipality of Kincardine Fire Department. (h) "Incident Reports" are the property statistical reports filed with the Office of the Fire Marshal (also called Standard Incident Reports); 1 / K� (i) "Incident Sites" is the address or location of the incident; (j) "Indemnification Technology®" means fire department incident reporting, data collection, and property insurance policy wording interpretation to maximize billing opportunities on behalf of fire departments by invoicing insurance companies for 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 of three years from the date of the authorizing bylaw. (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. (q) "Party" or "Parties" is the "Agent" and the "Municipality". (r) "Municipality" is the municipality entering into the agreement. (s) "Renewal Term" a time commitment. (t) "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 November 21, 2012 and will continue for a period of 3 (three) years (the "Initial Term "). Until terminated in accordance with Section 14, this Agreement will automatically renew for successive 3 (three) year(s) (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 hereof, Agent will: (a) upon receipt of the Incident Reports (as defined below) from the Fire Department, proceed diligently to prepare and file the Claims with the applicable insurers on behalf of the Municipality; (b) 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 2 comingled with the proceeds recovered for other municipalities and /or fire departments, for which Agent is providing similar services); (c) on a quarterly basis as agreed by the agent and the Municipality: (i) Remit the Emergency Cost Recovery Proceeds to the Municipality, Tess any Agency Fee, and Agency Fee Taxes deducted in accordance with Sections 6 and 7. (ii) deliver a statement to the Municipality providing reasonable details in regards to the amounts being remitted for the applicable period; and (d) maintain complete, adequate and accurate books of and records for the insurance proceeds recovered and remitted and in the detail required to verify all records and accounts submitted to the Municipality maintained in a manner consistent with Agent's internal accounting policies. 5. MUNICIPALITY'S OBLIGATIONS During the Term, the Municipality will: (a) on a monthly basis or as agreed by the Municipality and Agent provide the Agent with the completed Standard Incident Reports (the "Incident Reports ") related to its attendance at any property Incident Sites, setting forth in reasonable detail the services provided and the costs and expenses incurred by the Fire Department in attending such Incident Sites and providing services to the applicable insured, the insurance company and the policy number of the structure if available; (b) As requested by Agent, provide the Agent with evidence that the Fire Department is the sole beneficiary of any Emergency Cost Recovery Proceeds that have been remitted to the Fire Department in accordance with Section 4(c); (c) 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. 6. AGENCY FEE In consideration for the services provided by the Agent hereunder and the day to day management of such services, during the Initial Term, the Agent will be entitled to a fee equal to 30% of all Emergency Cost Recovery Proceeds (the "Agency Fee "). The Agent will be entitled, on a monthly basis as agreed by the Municipality and Agent, to invoice the Municipality for the Agency Fee accrued in respect of the previous month Emergency Cost Recovery Proceeds and to deduct from the Emergency Cost Recovery Proceeds such amount when collected. The Agent shall not be entitled to any further consideration from the Municipality or the Fire Department for the services provided by it hereunder other than the netting of the Agency Fee from the Emergency Cost Recovery Proceeds. The amount of the Agency Fee shall be negotiated by the Parties for any Renewal Terms. 7. TAXES (a) The Agency Fee to be charged by Fire Marque Inc. in accordance with Section 6 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 3 Emergency Cost Recovery Proceeds that are to be remitted to the Fire Department, any Agency Fee Taxes, and all such Agency Fee Taxes will be remitted to the applicable govemment agency, as and when required. 8. INTELLECTUAL PROPERTY The Municipality agrees and acknowledges for and on behalf of the Principal or Parties 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® (the "Intellectual Property "), are the property of the Agent, and the Principal and Parties have no rights in and to this Intellectual Property. 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 and no amounts will be payable where an owner or tenant of any property does not maintain any insurance or where its insurance policy does not permit the recovery of the costs and expenses of the Fire Department incurred as result of attending at the Incident Sites. Further the Agent will only attempt to recover from the insurer the lesser of the amount of the costs and expenses of the Fire Department or the maximum amount that is recoverable under the policy of insurance. The Fire Department will only be entitled to receive Emergency Cost Recovery Proceeds actually recovered by Fire Marque Inc. on behalf of the Municipality. 11.INCIDENTS ATTENDED TO BY OTHERS It is acknowledged by the Parties that in certain instances, in addition to the Fire Department, other fire departments or other emergency personnel ( "Third Party Fire Departments ") may have attended at an Incident Site and whose costs and expenses incurred as result of attending at such Incident Site may also be recoverable under the Insurance Policies of the owner or tenant of such Incident Site. In such cases: (a) the Fire Department 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 Fire Department and the Third Party Fire Departments. (b) the Fire Department shall negotiate an appropriate allocation of the Emergency Cost Recovery Proceeds with the Third Party Fire Departments, and to the extent they are unable to agree in writing 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 in connection therewith, whereupon Agent shall be released from any further obligations in respect of such Emergency Cost Recovery Proceeds and the Municipality and the Fire Department shall hold harmless from 4 any dispute arising with respect to such Emergency Cost Recovery Proceeds whether, Agent is acting as agent on behalf of the other party to the dispute or otherwise. 12.LIMIT ON LIABILITY Other than actually Emergency Cost Recovery Proceeds, the Agent will not be liable to the Municipality for any costs and expenses of the Fire Department which it was unable to recover from the insurers. 13.INDEMNIFICATION The Municipality and the Agent will both during the Term and after the termination of this Agreement, each indemnify and save harmless the other from and against any loss, damage, claim, demand, cost, action, suit, expense or liability whatsoever whether in respect to losses suffered by them 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), whether by a Party or as a result of the end of the Term, Agent shall be entitled to continue filing all Claims with insurers and collecting Emergency Cost Recovery Proceeds, for any incidents attended to by the Fire Department 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. Municipality shall not and shall cause the Fire Department to not make Claims in respect of any incidents attended to by the 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, The Municipality of Kincardine 1475 Concession 5, RR #5, Kincardine, ON N2Z 2X6 Phone: 519- 396 -3468 Fax: 519 - 396 -8288 Attention: Fire Department if to the Agent Fire Marque Inc., P.O. Box 2018, Thornton, ON LOL 2N0 Phone: 705 -424 -5991 Fax: 705 -424 -5702 Attention: Ted 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 (Ontario); (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 (Ontario) shall apply to and govern each such reference to arbitration. (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. 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, 6 / r4) provided that nothing herein shall prevent Fire Marque Inc. from assigning this Agreement or any of its rights or obligations to an affiliate of Fire Marque Inc., provided that Fire Marque Inc. 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. 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, and the Freedom of Information and Protection of Privacy Act. 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 and Municipality 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 by the Freedom of Information and Protection of Privacy Act, 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 Agent or 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. IN WITNESS WHEREOF the parties have executed this Agreement as of the date first above written. By: a - • _ 1 ame:: Titl r jot By: 1 Name: Title: Murray Clarke, CAO B RE MARQUE IN / l Nam , jk m : T'd K. Woods Glliittt /// a K oo s Title: President By: Name: Title: 8 /4P