CANADIAN HYDROKINETIC TURBINE TESTING CENTRE (CHTTC)
USER AGREEMENT
THIS AGREEMENT BETWEEN:
THE UNIVERSITY OF MANITOBA,
on behalf of the Faculty of Engineering,
(the "UNIVERSITY")
- and -
(ENTER USER COMPANY'S FULL LEGAL NAME),
at (enter address)
Turbine Manufacturer
(the "USER")
WHEREAS:
A.
The UNIVERSITY has established a Canadian Hydrokinetic Turbine Testing Centre (the
"CHTTC") to provide a commercially compliant testing centre for hydrokinetic turbines and
related water- to-grid technologies;
B.
The CHTTC is located in the spillway below the Manitoba Hydro Hydroelectric Dam at Seven
Sisters Falls on the Winnipeg River, on property owned by Manitoba Hydro and licensed to the
UNIVERSITY;
C.
Although Manitoba Hydro has allowed access to its property for the establishment of the
CHTTC, Manitoba Hydro is in no way related to or responsible for the activities conducted at the
CHTTC.
D.
USER is a Canadian manufacturer of Hydrokinetic Turbines and/ or related technologies and
wishes to access the CHTTC and to use support services and resources provided by the
UNIVERSITY to conduct research and / or testing actives on Canadian technology in accordance
with the terms of this Agreement.
NOW THEREFORE in consideration of the mutual covenants of the parties set forth in this Agreement
and other good and valuable consideration, the UNIVERSITY and USER agree as follows:
1.
Term. Subject to section 13 of this Agreement, the term of this Agreement shall commence on
, and end on
2.
(the “Term”).
Use. During the Term, the USER shall have non-exclusive access to the CHTTC for the purpose
of research and / or testing activities on Canadian turbine technology (the “Purpose”), subject to
approval of the USER's Project Plan in accordance with section 5. Once the Project Plan is
approved, access to the CHTTC shall be arranged by the UNIVERSITY in accordance with
sections 4. Any use by the USER other than the Purpose shall constitute an unauthorized use of
the CHTTC and the University may, at its option, terminate this Agreement immediately.
3.
Fees. USER will be provided access to the CHTTC site and the use of the support services and
resources of the UNIVERSITY at no charge. USER will be responsible for any and all expenses
incurred by the UNIVERSITY in support of the USER Project above and beyond the resources
and services listed in section 4, including the cost of any additional machinery, equipment,
v.15.09.24.MAV
Page 1 of 7
services and / or other capabilities not currently available at the CHTTC and procured by the
UNIVERSITY at the USER's request. UNIVERSITY will not undertake to provide any
additional resources or incur any additional costs in support of the USER Project without the
prior approval of the USER Project Manager.
4.
Services. The UNIVERSITY will provide support services and resources to the USER in order
to oversee the USER's access and work associated with the Purpose (the "Service"), including:
5.
(a)
Providing USER with access to the CHTTC on such schedule as may be mutually
agreeable between the USER Project Manager and the CHTTC Manager;
(b)
Providing USER with the use of the following supporting resources available at the
CHTTC:
(i)
Limited space within a fenced compound, to be provided in the UNIVERSITY's
sole discretion;
(ii)
Limited space within an equipment building, to be provided in the
UNIVERSITY'S sole discretion;
(iii)
Limited inside storage, to be provided in the UNIVERSITY's sole discretion;
(iv)
Access to the pontoon working platform on such schedule as may be mutually
agreeable between USER Project Manager and the CHTTC Manager from time
to time;
(v)
Access to two Zodiac work boats, to be operated by UNIVERSITY personnel;
(vi)
Test equipment as may be available from time to time; and
(vii)
Assistance in arranging shoreline-to-grid connection to the Manitoba Hydro
power grid.
Project Plan. USER must submit a CHTTC project plan (the "Project Plan") for approval by
the CHTTC Manager prior to being scheduled into the CHTTC. USER’s Project Plan must
include but is not limited to:
(a)
A physical description of the turbine(s) and /or other equipment to be tested (i.e., size,
weight etc. (a technical description is not required));
(b)
The nature of the activities USER will undertake at the CHTTC including:
(i)
The name and position of the USER representative that will manage its CHTTC
project ("USER Project Manager").
(ii)
The duration of the activity at the CHTTC,
(iii)
Where in the water column the turbine(s) are to be located;
(iv)
How the turbine(s) will be anchored / tethered;
v.15.09.24.MAV
Page 2 of 7
(c)
6.
(v)
How the turbine(s) will be deployed and retrieved;
(vi)
The nature of any water-to-shore electrical connections required;
(vii)
Space and equipment requirements inside the compound and / or buildings; and
(viii)
Personal access to the site required by USER representatives during the CHTTC
project.
USER’s safety plan for its activities at the CHTTC and related to its CHTTC project.
This is considered to be a critical part of the Project Plan. USER is responsible for
supplying their crews with appropriate personal safety gear as required by CHTTC safety
procedures, which will be communicated to USER by the CHTTC from time to time.
Persons not equipped as required by the CHTTC's safety procedures will not be allowed
to participate in those activities on site for which the safety equipment is required.
Confidentiality. Subject to section 7, each of the UNIVERSITY and the USER may disclose
information it considers confidential to the other to facilitate the Use and the Service. Each party
will use all reasonable efforts to treat and keep confidential, and cause its officers, servants,
students and employees to treat and keep confidential, any such information received by it from
the other marked as “Confidential”, “Protected Business Information” or “Not for Publication”,
and in no event will such efforts be less than the degree of care and discretion the recipient
exercises in protecting its own confidential information. Any such information will be disclosed
within the recipient’s organization on a “need to know” basis.
7.
Exclusions from Confidentiality. The obligations regarding confidentiality set out in this
Agreement shall not apply to information which:
8.
(a)
was in the recipient’s possession before receipt from the disclosing party, as established
by written records;
(b)
is or becomes a matter of public knowledge without breach of the Agreement by the
recipient;
(c)
is received by the recipient from a third party which had no duty of confidentiality with
respect to it;
(d)
is independently developed by the recipient, as established by written records;
(e)
must necessarily be disclosed to regulatory agencies, or to clinicians or others in
connection with such disclosures;
(f)
is required to be disclosed by law or valid court order; or
(g)
is disclosed by the recipient with the disclosing party’s prior written approval.
Project Results. USER will act in good faith and work with the CHTTC Manager to publish
and make available for dissemination non-proprietary, non-competitive project results from
research and testing conducted at the CHTTC. No USER will be required to publish or make
known results that are proprietary or confidential.
v.15.09.24.MAV
Page 3 of 7
9.
Maintenance and Security of Company Equipment and Objects. USER shall be solely
responsible for the maintenance and security of any equipment or objects it brings to the CHTTC.
10.
Maintenance and Repair of University Equipment and Objects. USER shall, at its sole
cost and expense, make all repairs and replacements to UNIVERSITY equipment or objects as
made necessary by any willful or negligent act or omission by the USER, its agents, employees or
invitees. Should the USER fail to make such repairs and/or replacements, the UNIVERSITY shall
be entitled to make the repairs and/or the replacements with the cost being charged to the USER.
11.
Maintenance and Repair of Third Party Equipment and Objects. USER shall, at its
sole cost and expense, make all repairs and replacements to any third party equipment or objects
connected with the CHTTC that may be damaged as a result of any willful or negligent act or
omission by the USER, its agents, employees or invitees. Should the USER fail to make such
repairs and/or replacements, the UNIVERSITY shall be entitled to make the repairs and/or the
replacements to the third party equipment with the cost being charged to the USER.
12.
Condition of the premises. The USER shall not do any of the following in respect of USER's
access to the CHTTC:
(a)
Breach any safety protocol or regulations that the UNIVERSITY may institute with
respect to access to the CHTTC from time to time;
(b)
Breach any applicable laws, rules, regulations, by-laws and standards, including but not
limited to those relating to the environment or public health;
(c)
Place or leave, or permit to be placed or left, any trash, debris or refuse on the property;
(d)
Bring onto the property any contaminants, dangerous goods, pollutants, hazardous
materials or hazardous waste (as broadly defined in applicable legislation [whether in
existence on the date of signing of this License or executed, promulgated or published
after the date hereof], including, but not limited to (i) The Environment Act (Manitoba),
The Contaminated Sites Remediation Act (Manitoba), The Dangerous Goods Handling
and Transportation Act (Manitoba), The Public Health Act (Manitoba), the Canadian
Environmental Protection Act 1999 (Canada) and all regulations thereunder and (ii) all
applicable common law and general principles of equity) (hereinafter the “Hazardous
Substances”), and shall at the termination or expiry of this License leave the Property free
from any (potentially) Hazardous Substances in, on or near the Property which are or
may be (i) caused by or through, (ii) generated or created as a result of the operations of
or by, or (iii) brought onto the property, by the USER;
(e)
Plant any trees or shrubs on, or remove or interfere with any trees, shrubs or facilities
presently or in the future located on the property without the express written consent of
the UNIVERSITY;
(f)
Operate, or permit the operation of, equipment or vehicles having a height greater than
FOURTEEN (14) feet on the property;
(g)
Erect or construct facilities, structures, buildings or fixtures on the Property without the
UNIVERSITY's written consent, failing which such facilities, structures, buildings or
fixtures may be removed by the UNIVERSITY or Manitoba Hydro at the USER’s
expense; or
v.15.09.24.MAV
Page 4 of 7
(h)
13.
Termination. This Agreement may be terminated as follows:
(a)
14.
Stockpile, accumulate, collect, reserve, store, pile, deposit or place materials of any kind
including but not limited to snow, earth, or gravel on the Property without the express
written consent of the UNIVERSITY.
by the UNIVERSITY:
(i)
immediately on the bankruptcy or insolvency of the USER; or
(ii)
immediately following a breach by the USER of any of the terms, conditions or
covenants contained herein; or
(iii)
at the UNIVERSITY’s option, for any reason whatsoever, on five (5) days
written notice to the USER;
(b)
by the USER, following a breach by the UNIVERSITY of any of the terms, conditions or
covenants contained herein, provided that the USER shall be responsible to make
payment to the UNIVERSITY for any amounts due and owing up to the effective date of
the termination and to comply with all of its obligations that have accrued up to and
including the date of termination; and
(c)
by mutual written consent of the parties at any time.
On Termination. On termination of the Agreement, the USER shall immediately cease and
desist from any use of the CHTTC whatsoever. USER shall vacate the CHTTC immediately and
shall remove, at USER's cost, any equipment that USER may have transported to the CHTTC.
15.
Laws, Policies, Regulations, Directives and By-Laws.
16.
Authorizations. USER shall be solely responsible for ensuring that all necessary permissions,
USER shall ensure that all laws,
regulations,
by-laws
and
University
polices
(as
set
out
at
www.umanitoba.ca/admin/governance/571.html ) and any other terms and conditions
communicated (verbally or in writing) by the UNIVERSITY are adhered to at all times by the
USER’s employees, agents, officers and invitees.
permits, certifications, authorizations, licenses and approvals, including but not limited to ethics
and regulatory approvals, are obtained with respect to any activities that it performs at the
CHTTC in connection with this Agreement, prior to commencement of such activities.
17.
Liability and Indemnity.
18.
Limitation of Liability. Under no circumstances shall the UNIVERSITY be liable for indirect
USER agrees to hold harmless, indemnify and defend the
UNIVERSITY and its successors, affiliates, assigns, officers, directors and employees from all
liabilities, demands, damages, claims, expenses and losses arising out of any actual or alleged
negligent acts or omissions of USER, its officers, directors, employees and invitees in connection
with this Agreement, except to the extent such liabilities, demands, damages, claims, expenses or
losses are caused by or attributable to the negligence or willful misconduct of the UNIVERSITY.
USER shall obtain and maintain comprehensive general liability insurance in an amount not less
than two million dollars ($2,000,000.00) per occurrence and shall provide a certificate of
insurance to the UNIVERSITY prior to accessing the CHTTC.
or consequential damage or damages.
v.15.09.24.MAV
Page 5 of 7
19.
Notice. Any notice or communication between the parties pursuant to this Agreement shall be
delivered or sent by courier, prepaid registered mail or facsimile transmission, to the respective
addresses as set out below, or to such other addresses as one party might subsequently advise the
other:
If to the USER:
(ENTER USER COMPANY'S FULL LEGAL NAME)
(enter address)
Fax No.:
Attention:
If to the UNIVERSITY:
The University of Manitoba
CHTTC Manager
E1-439 EITC
Winnipeg, Manitoba R3T 2N2
Attention:
Dr. Eric Bibeau
With a copy to:
The University of Manitoba
Faculty of Engineering
E2-290 EITC
Winnipeg, MB R3T 2N2
Fax No.: 204-275-3773
Attention:
Dean
20.
Overlooking and Condoning.
21.
Enurement and Assignment. This Agreement shall be binding upon and enure to the benefits
Any condoning, excusing or overlooking by the
UNIVERSITY of any default, breach or non-observance by the USER of any of the provisions
hereunder, at any time or times, in respect of any covenant, provision or condition herein
contained shall not operate as a waiver of the UNIVERSITY's rights hereunder in respect of any
subsequent default, breach or non-observance and shall not affect the rights of the UNIVERSITY
to take action with respect to any of the foregoing.
of the parties hereto and their respective successors and permitted assigns, provided that neither
of the parties shall assign or subcontract this Agreement or any part thereof or any rights or
obligations under this Agreement without the prior written approval of the other party hereto.
22.
Survival. Sections 6, 7, 14, 17, 18 and 22 shall survive termination or expiration of this
Agreement. The obligations of confidentiality under Section 6 shall continue for a period of five
(5) years from the date of termination of this Agreement.
23.
Relationship. Nothing contained herein or done hereunder shall be construed as establishing
any agency, employment, partnership or joint venture relationship between the parties for any
purpose whatsoever.
v.15.09.24.MAV
Page 6 of 7
24.
Capacity. The parties hereto represent that they have the necessary capacity and authority to
enter into this Agreement.
25.
Amendment. No amendment, modification or revision of this Agreement shall be effective
unless set forth in writing signed by a duly authorized representative of each party.
26.
Governing Law. This Agreement shall be interpreted and governed by the laws of Canada and
the Province of Manitoba as applied to transactions taking place entirely within Manitoba
between Manitoba residents. Any action taken relating to this Agreement shall be commenced in
the Court of Queen's Bench (Winnipeg Centre) of Manitoba.
27.
Execution. This Agreement may be executed in any number of counterparts and by different
parties in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement. Delivery by
facsimile or by electronic transmission in portable document format (PDF) of an executed
counterpart of this Agreement is as effective as delivery of an originally executed counterpart of
this Agreement.
IN WITNESS WHEREOF this Agreement has been duly executed by the parties as of the date written
below.
THE UNIVERSITY OF MANITOBA
Per:
Name: Jonathan Beddoes
Title: Dean, Faculty of Engineering
Date:
(ENTER
NAME)
USER
COMPANY'S
FULL
LEGAL
Per:
Name:
Title:
Date:
S:\Legal\Engineering, Faculty of\2013\0679 - Manitoba Hydro - License to use land for hydrokinetic turbine testing centre\CHTTC User
Agreement - Oct 2 2015.docx
v.15.09.24.MAV
Page 7 of 7