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HomeMy WebLinkAbout2008-180THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 2008-180 Being a By-law to authorize the execution of a Memorandum of Understanding between the Corporation of the Municipality of Clarington and St. Marys Cement Inc. (Canada) to authorize the use of St. Marys' Bowmanville Cement Plant located at 400 Waverley Road South, Bowmanville ON, for fire department training purposes. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1. THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington and seal with the Corporation Seal, a Memorandum of Understanding between, St. Marys Cement Inc. (Canada), and said Corporation; and 2. THAT the agreement attached hereto as Schedule "A" form part of this By-law. By-law read a first and second time this 14th day of October, 2008. By-law read a third time and finally passed this 14th day of October, 2008. Memorandum of Understanding Between St. Marys Cement Inc. (Canada), a corporation organized and existing under the laws of the Province of Ontario and having its head office located at 55 Industrial Street, Toronto, Ontario, M4G 3W9 and The Corporation of the Municipality of Clarington, a corporation organized and existing under the laws of Ontario; located at 40 Temperance Street, Bowmanville, Ontario L1C 3A6 ;and having its Emergency & Fire Services Headquarters located at 2430 Highway No. 2, Bowmanville, Ontario L1C 3K9. Dated September 19, 2008 1. Introduction hi the spirit of community cooperation, this memorandum of understanding ("MOU") relates to an understanding between St. Marys Cement Inc. (Canada) (hereinafter referred to as "St. Marys") and the Clarington Emergency & Fire Services Department (hereinafter referred to as "Clarington" or "CEFS") regarding Clarington s use of St. Marys' Bowmanville Cement Plant located at 400 Waverley Road S, Bowmanville, ON L1C 3K3 ("Bowmanville Plant") for fire department training purposes. Clarington used St. Marys' Bowmanville Plant for fire department training on June 20, 2006. Clarington recently approached St. Marys, requesting along-term arrangement enabling Clarington to use the Bowmanville Plant for on-going fire department training ("Training Sessions") In consideration of the mutual covenants contained herein, the parties agree to the following terms: 2. Term of the Training Sessions The term of this agreement will continue until written notice by either party, as provided for in this agreement. The term of this agreement will continue until written notice by either party, as provided for in this agreement. 3. Licensed Area Areas to be used for the Training Sessions (the "Licensed Area") must be approved by St. Marys through St. Marys' Safety Coordinator at least two (2) weeks in advance of any Training Session. 4. Grant of Licence St. Marys grants to Clarington anon-exclusive licence to occupy the Licensed Area at the Bowmanville Plant for occasional use from time to time for the purpose of the Training Sessions for the Term of this MOU. St. Marys will at all times maintain its rights to use, access the Licensed Area or refuse any type of training that it feels would be detrimental to the company. Page 1 of 5 5 Municipality of Clarington Responsibilities 5.1 Licence Fee: No licence fee shall apply during the term of the MOU. 5.2 Clarington will: 5.2.1 only use the Licensed Area for the purpose set out above; 5.2.2 bear all costs and expenses associated with their use of the Licensed Area whatever they may be, provided they result from CEFS or actions of any other party associated with the CEFS Training Session; including directly related costs for the clean-up of the Licensed Area due to spIlls, etc. as well as directly related costs that have been pre-approved by CEFS Management and expenses for any services, materials or personnel associated with or required for its use of the Licensed Area; 5.2.3 provide at least two (2) weeks written notice of each training session to the Bowmanville Plant's Safety Coordinator. 5.2.4 at all times be subject to and strictly comply with all orders, rules and regulations of St. Marys, and ensure that all employees, volunteers or representatives are at all times dressed appropriately, that the Licensed Area is clean, and that there is no accumulation of rubbish within the Licensed Area; 5.2.5 ensure that Training Session participants conduct themselves in a professional manner at all times; 5.2.6 ensure that each Training Session is supervised and conducted by fully qualified and competent trainers at all times; 5.2.7 provide for "Rope Rescue Training" or any other mutually agreed upon training exercises, sufficient proof to St. Marys' Safety Coordinator that each Training Session participant has been trained and certified competent in rope rescue techniques or other required mutually agreed upon certification for agreed training exercises while such training exercises are being conducted within the Licensed Area. Sufficient proof must be supplied prior to initial use for each participant and any subsequent participants partaking thereafter. Sufficient proof being a signed training record from the organization performing the training signifying that the individual(s) have successfully completed basic training in "Rope Rescue Techniques" including both theory and practical competent demonstration of those techniques. 5.2.8 permit St. Marys' management to enter and inspect the Licensed Area at any time; 5.2.9 release and indemnify St. Marys from and against any and all losses, claims, suits and demands arising from injury or damage to persons or property suffered by itself, its employees, agents or invitees incurred during Clarington's occupation of the Licensed Area or while they (or any of them) are within or upon the lands or premises of St. Marys, except when such injury, loss or damage is occasioned by the negligence or wilful misconduct of St. Marys, its employees, contractors or agents; 5.2.10 not assign or transfer authority under this MOU; and 5.2.11 leave the Licensed Area in the state found prior to training and, at its expense, remove any equipment or other personal property it has brought upon the lands and premises of St. Marys and make good any damage caused by the installation or removal of any such equipment or personal property; 5.2.12 ensure that all Training Session participants attend a St. Marys Safety and Environment Site Orientation prior to the first scheduled Training Session and thereafter on an annual basis. Page 2 of 5 6. St. Marys' Responsibilities 6.1 St. Marys will provide to Training Session participants, the St. Marys Safety and Environmental Site Orientation as per Section 5.2.12, at a mutually agreed upon time, at no cost to the municipality. 6.2 St. Marys will not unnecessarIly interfere with activities while the training is underway. 7. Termination 7.1 St. Marys may terminate this MOU by written notice in case Clarington: (a) fails or refuses to comply with the reasonable orders or requests of St. Marys' management; (b) permits any conduct or act which in the reasonable opinion of St. Marys' management is improper or renders it inadvisable that Clarington should be allowed to continue carrying on activities under this MOU, or (c) fails to comply with the terms and conditions of this MOU. In such event, St. Marys may remove Clarington's property using reasonable care from the Licensed Area and shall not be liable in damages or otherwise by reason of any such actions. 7.2 The Municipality of Clarington may terminate this MOU for any reason with thirty (30) days notice in writing to St. Marys. 8. Assumption of Risk, Release and Indemnity; Limitation of Liability 8.1 Clarington agrees to and hereby assumes all risk and any injuries to its employees, agents and representatives and any injuries they may cause to others, or damage to property, while the Clarington Fire Department is at the Bowmanville site while undertaking training. Clarington further releases, remises, and forever discharges and agrees to indemnify and hold harmless on behalf of itself, directors, officers, agents, employees, assigns and successors, St. Marys, together with its present and former directors, officers, agents, employees, successors, and assigns, jointly and severally for all manner of actions, causes of action, suits, demands, and claims whatsoever in connection with all and any injuries, including death or negligence to it, or such damages to its property, which may occur during the above-noted activities, except when such injury, loss or damage is occasioned by the negligence or wIlful misconduct of St. Marys, its employees, contractors or agents. 8.2 St. Marys will make reasonable efforts to accommodate Clarington's requests and to abide by any agreed upon schedule. However St. Marys will not be liable for any non-fulfillment of this MOU if attributable, directly or indirectly, to the closure of or inability to access the Licensed Area or the lands and premises of St. Marys, fire, act of God, public enemy, strikes or other labour disputes, the authority of the law, or any other cause beyond its reasonable control. In addition, St. Marys shall not be liable for any indirect or consequential damage, even if it has been advised of the possibility of the occurrence of the foregoing. 9. Insurance 9.1 Before commencing any Training Sessions at the Bowmanville Plant, Clarington shall obtain and continuously carry during the Term of the MOU, at its own expense and cost, the following insurance with limits not less than those specified in the respective items. Clarington also agrees to provide to St. Marys 30 days written notice regarding any material changes adversely affecting the Page 3 of 5 coverages) or amendments restricting coverage or cancellation of any such policy or policies. 9.1.1 Workplace safety insurance in compliance with workplace safety legislation at the place of work, including payments due thereunder, with respect to its employees conducting or participating in Training Sessions. 9.1.2 Automobile Liability Insurance Automobile Liability insurance in respect of licensed vehicles shall have limits of not less than $2,000,000 inclusive per Occurrence of bodily injury, death, and damage to property, covering all licensed vehicles owned or leased by Clarington, and endorsed to provide St. Marys not less than 90 days notice in writing in advance of any cancellation, change or amendment restricting coverage. 9.1.3 A Comprehensive General Liability Policy containing the following terms and conditions, namely: (i) A combined single limit of $ 5,OOD,000 for each occurrence or accident (which can be a combination of Comprehensive General Liability and Excess/Umbrella Liability); (ii) Coverage in an occurrence basis against bodily injury (including death at any time resulting there from) sustained by any person or persons and damage to or destruction of property including loss of use caused by an occurrence or accident arising from any Training Sessions. (iii) Coverage for the following: (a) Broad Form Blanket Cpntractual Liability for liability assumed under the Agreement and any other agreements relating to this MOU; (b) Broad Form Property Damages; (c) Personal Injury Liability; (d) Non-owned Automobile coverage for a limit of $ 5,000,000 for licensed motor vehicles used by Clarington; (e) Cross liability and severability of interest clause. (iv) This policy shall include St. Marys and their representatives as additional insured, extend to cover employees, agents, officers and directors of such additional insured. 9.2 Clarington shall provide St. Marys' Safety & Health Coordinator with certificates of insurance in a form satisfactory to St. Marys' Safety & Health Coordinator upon execution of this MOU and thereafter at least once annually. 10. Miscellaneous This MOU shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable in such Province, excluding any rule or principle of the conflict of laws which might refer such construction to the laws of another jurisdiction. Each party irrevocably submits and agrees to the non-exclusive jurisdiction of the Courts of Ontario with respect to any matter related to this MOU. If any provision o f this MOU is unenforceable or deemed void by law, the remainder of the MOU will prevail. Each party will comply with all applicable laws in the performance of their respective obligations under this MOU. This MOU shall enure to the benefit of and shall be binding upon the parties hereto and their respective successors and assigns. This MOU may be executed in counterparts which taken together, shall form one agreement. An executed counterpart of this MOU may be delivered by facsimile transmission. Page 4 of 5 By having authorized representatives sign below, the parties indicate their agreement with the foregoing. ST. MARYS CEMENT INC. (CANADA) THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON ~-' ' By: Tony Merlin Safety & Health Coordinator By: J'n'~Yfhy f -_.-- - _ ~ - M or _ -.~ Date: October_1(T, 21T08 ~ ~-~ Oil Date: 'I am authorized to bind the corporation.' Patti L. ~e ~ Municipal Clerk Date: October 16, 2008 'We are authorized to bind the corporation. Page 5 of 5