3668-2023 Authorize Cost Recovery for Fire Dept. Specific Response (Fire Marque)
BEING A BY-LAW TO AUTHORIZE COST RECOVERY (FEES) WITH RESPECT TO FIRE DEPARTMENT SPECIFIC RESPONSE
Passed by Council November 13, 2023
THE CORPORATION OF THE TOWNSHIP OF AUGUSTA
BY-LAW NUMBER 3668-2023
BEING A BY-LAW TO AUTHORIZE
COST RECOVERY (FEES) WITH RESPECT TO FIRE DEPARTMENT SPECIFIC
RESPONSE
WHEREAS pursuant to section 8 of the Municipal Act, 2001, S.O. 2001, c. 25, as
amended from time to time (the “Municipal Act”), the powers of a municipality are to be
interpreted broadly so as to confer broad authority on the municipality to enable the
municipality to govern its affairs as it considered appropriate and to enhance the
municipality’s ability to respond to municipal issues;
AND WHEREAS pursuant to section 391 of the Municipal Act, a municipality may
impose fees or charges on persons for services or activities provided or done by or on
behalf of it;
AND WHEREAS pursuant to section 398 of the Municipal Act, fees and charges
imposed by a municipality on a person constitute a debt of the person to the
municipality;
AND WHEREAS Council of the Corporation of the Township of Augusta deems it
expedient to pass a by-law to impose fees on persons to recover the costs of fire
department responses;
NOW THEREFORE the Council of the Township of Augusta hereby enacts as follows:
1. In this By-Law:
a. “Council” means Council of the Township of Augusta
b. “Fire Department” means a fire department established by the Municipality
in accordance with the provisions of the Fire Protection and Prevention Act,
1997, SO. 1997, c. 4, as amended from time to time;
c. “Fire Department Specific Response Fees” means cost recovery fees for
Fire Department attendance at a Property for which the Owner has Fire
Department insurance coverage;
d. “Indemnification Technology®” shall mean 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;
e. “Municipality” means the Corporation of the Township of Augusta;
f. ‘Owner” means the registered owner of property or any person, firm,
corporation, partnership or society and their heirs, executors, administrators
or other legal representatives, including a property manager, tenant,
occupant, mortgagee in possession, receiver, manager, trustee or trustee
in bankruptcy having control over or possession of the property or any
portion thereof;
g. “Property” means any real property located within the geographical
boundaries of the Municipality, and any real property to which the Fire
Department is under a service agreement to provide Fire Department
Response services, Automatic Aid or Mutual Aid. Real property includes
buildings, contents and structures of any nature and kind in or upon such
lands to which service is provided.
2. The Municipality hereby authorizes the imposition of tees from time to time in
accordance with the provisions of this By-Law.
3. The Owner of Property shall be responsible for the payment of Fire Department
Specific Response Fees imposed by this By-Law in accordance with the Schedule
of Fees, attached hereto and forming part of this By-Law.
4. The Municipality may use Indemnification Technology® to assess applicable
insurance coverage for Fire Department Specific Response Fees.
5. Fees imposed pursuant to this By-Law constitute a debt of the Owner to the
Municipality and may be added to the tax roll of the Property to which the Fire
Department Specific Response Fees relate.
6. Where the Municipality believes and/or Indemnification Technology® indicates Fire
Department Specific Response Fees are applicable but the Owner does not have,
in part or in full, insurance coverage for fire department charges for the Property,
the Municipality may adjust the Fire Department Specific Response Fees to the
extent of insurance coverage upon provision by the Owner of evidence, to the
satisfaction of the Municipality, that no such insurance coverage exists or to
demonstrate the limits of such coverage.
7. In this By-Law, words importing the neuter gender shall include the feminine
gender and masculine gender and vice versa and words importing the singular
shall include the plural where the context requires.
8. It any term or provision of this By-Law or the application thereof to any person shall
to any extent be held to be invalid or unenforceable, the remainder of this By-Law
or the application of such term or provision to all persons other than those to whom
it was held to be invalid or unenforceable, shall not be affected thereby, it being the
intention of the Council that each term and provision of this By-Law shall be
separately valid and enforceable to the fullest extent permitted by law.
Read a first, second, and third time and finally passed this 13th day of November, 2023.
Signed by Mayor Jeff Shaver and Clerk Annette Simonian
SCHEDULE OF FEES
BY-LAW 3668-2023
BY-LAW TO AUTHORIZE
COST RECOVERY (FEES) WITH RESPECT TO FIRE DEPARTMENT SPECIFIC
RESPONSE
1. Fire Department Specific Response Fees
The Fire Department Specific Response Fees shalt be the total of:
a. *Current MTO rate per unit per hour or portion thereof for each unit
b. rate per person per hour or portion thereof for each firefighter
c. other costs including but not limited to; Foam, Metered Water, Air Tank Re
filling, Cleaning Equipment, OSPA or similar type units, cost to replace
damaged or destroyed equipment, specialized response costs such as
Water Bomber Drops
*The MTO rate per unit per hour is set by the Ministry of Transportation. This rate is
adjusted periodically in accordance with the consumer price index.
Such fees shall be charged and calculated on the basis of each Fire Department vehicle
attending, resources consumed in attendance to the property incident. The time shall
be measured from the time of departure of each unit from the Fire Department’s facilities
to the time the unit is cleared for the next call out.
AGENCY AGREEMENT
This AGENCY AGREEMENT (the “Agreement”) made the 20th day of November 2023.
BETWEEN:
FIRE MARQUE INC.
(herein after referred to as the Agent’)
– and –
THE CORPORATION OF THE TOWNSHIP OF AUGUSTA
(herein after referred to as the “Municipality’)
WHEREAS the Fire Department attends, when required, at incident Sites to provide
emergency services;
AND WHEREAS the costs and expenses incurred by the 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 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 & 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:
DEFINITIONS
“Agreement is this agreement, as may be amended;
“Agency Fee” is the financial compensation expressed as a percentage of the
recovered Emergency Cost Recovery Proceeds in accordance with Section 6;
“Agency Fee Taxes” are all taxes, duties and other charges (including any GST,
HST or other value added taxes) applicable to the Agency Fee;
“Agent” is Fire Marque Inc., or its successors and assigns;
“Claims” an amount requested for payment for an insured loss which falls under
the terms of Insurance Policies;
“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 and or tenant of an Incident Site to recover the costs and expenses incurred
by the Fire Department as result of attending and providing emergency services at
an Incident Site;
“Fire Department’ means a group of firefighters authorized to provide fire
protection services by the Municipality;
“Incident Reports” are the property statistical fire reports;
“Incident Sites” is the municipal address or property location of the incident which
is attended at by the Fire Department in relation to which the Fire Department
incurs costs and expenses as a result of providing their emergency services;
“Indemnification Technology® ” is the intellectual property owned and employed
by the Agent in making claims to recover costs and expenses of the 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;
“lndemnitees” means the Agent, its directors, partners, officers, agents, and
employees;
“Initial Term” is the period commencing from the date of first written above and
continuing thereafter for a period of five years;
“Insurance Policies” means an insurance policy of the owner or tenant who owns
or rents the property located on the Incident Site;
“Intellectual Property” is any intellectual property of the Agent, including but not
limited to any software, trade names, trademarks, and copyrighted materials and
any of the foregoing as it relates to Indemnification Technology®;
“Losses” means all loses, costs, expenses, interest, charges, assessments,
damages, liabilities, obligations, fines and penalties, including all reasonable costs
incurred investigating, defending or negotiating the settlement or resolution of any
demand, lawsuit, action, or proceeding, and specifically including reasonable legal
and other professional tees and expenses on a “full indemnity”, solicitor and his
own client” or comparable basis, regardless of whether the foregoing arise in,
under or by virtue of common law, equity or other applicable law, contract,
negligence, strict liability, breach of duty or otherwise;
“Party” or “Parties” is the Agent and the Municipality;
“Municipality” is The Corporation of the Township of Augusta
“Renewal Term” is a renewal term of 3 years;
“Term” is the Initial Term together with any subsequent Renewal Terms, until this
Agreement is terminated in accordance with Section 14;
“Termination Date” is the date this Agreement terminates in accordance with
Section 14; and,
“Third Party Fire Departments” is a tire department, fire brigade, persons and/or
equipment that are not part of the Fire Department.
TERM
The term of this Agreement will begin as of the date first written above and continue
for the period of the Initial Term and will automatically renew for successive
Renewal Terms upon the expiry of the Initial Term or any preceding Renewal
Term, unless this Agreement is terminated in accordance with Section 14.
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 Insurance
Policies of an owner or the tenant at any Incident Site.
AGENT OBLIGATIONS
During the Term of the Agreement, the Agent agrees:
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
Fire Department;
To establish and maintain a non interest bearing trust account to receive and hold
any 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);
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.
To deliver a statement to the Municipality providing reasonable detail in regards to
the amounts being remitted for the applicable period; and
To maintain complete, detailed and adequate books and records pertaining to
Claims and Emergency Cost Recovery Proceeds.
MUNICIPALITY’S OBLIGATIONS
During the Term of the Agreement, the Municipality agrees:
on a monthly basis or such period as agreed to between the Municipality and
Agent, to provide the Agent with all the completed 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 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;
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:
the purchase of equipment for the Fire Department
the provisions of training and education to the firefighters of the Fire
Department; and/or
the purchase and/or provision of materials and equipment for fire inspection,
fire prevention and public education programs;
if requested. to provide the Agent with documentation evidencing that the Fire
Department is the sole beneficiary of any Emergency Cost Recovery
Proceeds that have been remitted to the Municipality in accordance with
Section 4; and
to the extent the Municipality or the Fire Department is paid or receives Emergency
Cost Recovery Proceeds directly from the insurer under the Insurance
Policy, or from the owner or tenant of an Incident Site (as a result of such
owner or tenant receiving the Emergency Cost Recovery Proceeds directly
from the insurer under the Insurance Policy), the Municipality agrees that it
shall promptly remit payment of the Agency Fee that is payable to the Agent
in relation to such Emergency Cost Recovery Proceeds (as determined in
accordance with Section 6) and will provide the Agent with copies of all
communications and notices received from the insurer under the Insurance
Policy in relation to such Emergency Cost Recovery Proceeds for the
Agent’s own records.
AGENCY FEE
In consideration for the services provided by the Agent pursuant to this 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, 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 Fire
Department. The amount of the Agency Fee shall be negotiated by the Parties for
any Renewal Terms.
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 Fire Department, any Agency Fee Taxes, and all such
Agency Fee Taxes will be remitted to the applicable government agency, as and
when required.
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 confidential procedures for recovering funds for Fire
Departments 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.
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.
UNRECOVERABLE EXPENSES
No action will be undertaken by the Agent 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 the Agent 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 the Agent
through powers granted by their By-Laws or through litigation. Unless prior
arrangements have been made on a specific file.
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 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:
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 to take any action to determine the appropriate allocation of
such Emergency Cost Recovery Proceeds between the Fire Department
and the Third Party Fire Departments.
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 Indemnitees 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.
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 Fire Department attending and providing emergency services at an Incident
Site which it was unable to recover through the Insurance Policies of the owner or
tenant of such services
INSURANCE & IDEMNIFICATION
The Municipality agrees to indemnify and hold harmless the Indemnitees from and
against any and all Losses that may be imposed on, incurred by, or asserted
against, the Indemnitees or otherwise. in connection with the performance of its
duties under this Agreement or any actions or inactions taken by the Fire
Department or Municipality in connection with this Agreement, including as a result
of any claims: (i) from insurers as a result of inaccuracies, misrepresentations or
fraud in any of the Incident Reports and other information provided to Agent for the
purpose of filing Claims; and (ii) from Third Party Fire Departments claiming rights
to any Emergency Cost Recovery Proceeds that have been disbursed to the Fire
Department. The foregoing liability and indemnification by Municipality shall not
apply where the Losses arise from the Agent’s gross negligence fraud or willful
misconduct.
During the Term (and any renewal thereof as applicable) of this Agreement, the
Agent shall procure and maintain an errors and omissions insurance policy
of not less than five million dollars ($5,000,000.00) coverage. The
deductible shall not exceed twenty-five thousand dollars ($25,000.00).
The Agent shall carry a Commercial Blanket Bond with an amount no less than
Fifty Thousand Dollars ($50,000.00) that protects both the Agent and the
Municipality with respect to any loss resulting from dishonesty,
disappearance, destruction and Forgery act(s) arising from the work being
performed by the Agent under this Agreement on behalf of the Municipality.
The Agent shall, at their expense obtain and keep in force during the term of the
Agreement, Commercial General Liability Insurance in an amount not less
than five million dollars ($5000000.00) per occurrence and five million
($5,000,000.00) in the aggregate. This policy shall contain products and
completed operations coverage, Non-owned automobile coverage, and
coverage for claims resulting from Technology Network risks such as data
breaches, unauthorized access, theft of confidential information, invasion of
privacy, intellectual property infringement such as copyright, trademarks,
service marks and trade dress. The deductible shall not exceed twenty-five
thousand dollars ($25,000.00). The Municipality has the right to request, at
any time confirmation of the insurance coverages and that the policy is in
force.
TERMINATION
Notwithstanding Section 2, this Agreement will terminate with 30 days’ written
notice by either Party (the “Termination Date”). 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 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 Fire Department
shall not make claims in respect of any incidents attended to by the Fire
Department which occurred prior to the Terminate Date. The covenants set forth
in this Section 14 shall survive the termination of this Agreement.
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:
Augusta Fire Rescue
59-1022 County Road 15
Maitland, Ontario
KOE1PO
Phone: 613-925-4231
Fax: 613-348-3232
Attention: Augusta Fire Chief
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
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.
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:
the reference shall be to a single arbitrator appointed in accordance with the
Arbitration Act, 1991, SO. 1991, C. 17, as amended;
the decision of the arbitrator shall be final, conclusive and binding upon all parties;
unless otherwise determined by the arbitrator. the Parties shall pay an equal
portion of the fees and expenses of the arbitrator;
the Arbitration Act, 1991, 5.0. 1991, C. 17 shall apply to and govern each such
reference to arbitration; and
All arbitrations shall be conducted in Barrie, Ontario or in a location suitable to
both parties
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.
WAIVER
No waiver of any provision of this Agreement constitutes a waiver of any other
provision.
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.
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.
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.
ENUREMENT
This Agreement shall be binding upon and ensure to the benefit of the Parties and
their respective successors.
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.
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.
COLLECTION AND DISCLOSURE OF PRIVATE INFORMATION
Any information collected by the Agent and Municipality 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.
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.
CONFIDENTIALITY
The Agent shall hold confidential and not disclose or release to any person other
than the Agent and Municipality 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. The Agent shall
be entitled to disclose publicly the fact that the Municipality and/or the Fire
Department are clients of the Agent.
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 Municipality 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.
THE CORPORATION OF THE TOWNSHIP OF AUGUSTA
by: Mayor Jeff Shaver
by: Clerk Annette Simonian
FIRE MARQUE INC.
by: President Ted K. Woods
by: Administrator Sandra Kursis
