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HomeMy WebLinkAbout2008-012 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2008 - 012 Being a By-law to authorize a Municipal Access Agreement between the Corporation of the Municipality of Clarington and Rogers Cable Communications, Inc. WHEREAS Council adopted the recommendations contained in Report EGO- 004-08 authorizing the execution of a Municipal Access Agreement between the Municipality of Clarington and Rogers Cable Communications Inc. NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1. THAT the Mayor and Municipal Clerk be authorized to execute a Municipal Access Agreement between the Corporation of the Municipality of Clarington and Rogers Cable Communications Inc.; 2. THAT the agreement attached hereto as Schedule "A" form part of the By- law. BY-LAW read a first time this 28th day of January, 2008. BY-LAW read a second time this 28th day of January, 2008. BY-LAW read a third time and finally passed this 28th day of J~mlity,,2P08. ~ . - ethy; Mayor ~ '-' .' . '. MUNICIPAL ACCESS AGREEMENT ACCESS TO MUNICIPAL RIGHTS-OF-WAY This Agreement made the 1 sl day of December, 2007. BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (the "Municipality") - and- ROGERS CABLE COMMUNICATIONS INC. (the "Company") WHEREAS the Company is a Canadian carner as defined in Section 2 of the Telecommunications Act, S.c. 1993, c. 38, as amended or is a distribution undertaking as defined in subsection 2(1) of the Broadcasting Act, S.c. 1991, c. II, as amended (collectively "Canadian carri er") ; AND WHEREAS, in order to operate as a Canadian carrier, the Company is required to perform Work and operate its Plant in, on, over, under, across or along the Municipality's Rights-of-Way; AND WHEREAS, the Company requires the Municipality's consent to perform such Work and operate such Plant, in on, over, under, across or along the Municipality's Rights-of-Way; AND WHEREAS the Municipality is willing to permit the use of its Rights-of-Way where, in its judgement, such use will not interfere with its own service requirements and the public use of the Rights-of-Way including the consideration of functionality, safety and any rights or privileges previously conferred or hereafter conferred by the Municipality by contract or otherwise on others not parties to this Agreement to use any of the Rights-of-Way; , , 2 AND WHEREAS the Municipality and the Company have agreed that it would be mutually beneficial to outline the terms and conditions pursuant to which said consent shall be obtained; NOW THEREFORE in consideration of the mutual terms, conditions and covenants herein contained, the Municipality and the Company each agree with each other as follows: DEFINITIONS 1. In this Agreement, the following words and phrases shall have the following meanings: (a) "Affiliate" means "affiliate as defined in the Canada Business Corporations Act; (b) "Agreement" means this Municipal Access Agreement, complete with Schedules A andB; (c) "Director" means the Municipality's Director of Engineering, or the person designated by him or her; (d) "Emergency" means an unforeseen situation where immediate action must be taken to preserve public health, safety or urgent service; (e) "Hazardous Substance" means any hazardous substance and includes, but is not limited to, electromagnetic or other radiation, petroleum products or bi-products, industrial wastes, contaminants, pollutants, dangerous substances, and toxic substances, as defined in or pursuant to any law, ordinance, rule, regulation, bylaw or code, whether federal, provincial or municipal; (f) "Municipal Consent" means the written approval of the Director, with or without conditions, for access to and use of the Municipality's Rights-of-Way; (g) "Plant" means any of the Company's wires, fibre optic cables, ducts, manholes poles, cables, pipes, conduits, pedestals, antennas, vaults, support structures or other related facilities or structures (but does not include structures such as towers or walk in 1 3 cabinets) located or planned, as identified on a permit application submitted to the Municipality, to be located in the Right of Way; (h) "Right-of-Way" or "Rights-of-Way" means any highway, street, road allowance, lane, bridge or viaduct under the jurisdiction of the Municipality; (i) "Road Occupancy Permit" means a permit issued by the road authority of the Municipality for the purpose of authorizing the commencement and undertaking of Work in a Right-of-Way; G) "Service Drop" means Plant that by its design, capacity and relationship to the overall Plant of the Company, can be reasonably considered to be for the sole purpose of connecting the Plant to not more than a single customer of a single family residence or to a commercial or multiple dwelling building point; (k) "Subsurface Utility Engineering" means the generic process of locating underground facilities using locating techniques at varying levels of accuracy; (I) "Licensee" means any individual, corporation, partnership, association, joint venture or organization of any kind and the lawful trustee, successor, assignee, transferee or personal representative thereof that attaches their plant to or places their plant in the Company's Plant under an agreement with the Company but does not include direct users of the Company's services; and (m) "Work" means, but is not limited to, activities related to the Company's installation, construction, maintenance, testing, operation, repair, replacement, relocation, removal, adjustment or other alteration of Plant in, on, over, along, under, above or across any Right-of-Way, including the excavation, repair and restoration of the Right-of-Way. . , 4 USE OF RIGHTS-OF-WAY 2. The Municipality hereby agrees to permit the Company the use of any Right-of-Way for the purpose of the Company completing it's Work, subject to the terms and conditions set out in this Agreement and the approved Municipal Consent, and in accordance with all applicable federal, provincial and municipal statutes, laws and by-laws or other rules, regulations, policies, standards and guidelines pertaining to the application and use of the Right-of-Way or the Plant, provided that said provincial and municipal statutes, laws and by-laws or other rules and regulations are not in conflict with the applicable federal statutes or regulations, or this Agreement. 3. The Company shall not use any Rights-of-Way in whole or in part for any purpose other than that permitted under this Agreement, unless otherwise agreed to or permitted by the Municipality. APPROVAL OF DIRECTOR 4. Subject to 4.1 and 4.2, the Company, its employees, contractors, representatives or agents shall not enter, excavate, break up or otherwise break the surface of any Right-of-Way for the purpose of its Work without first: (a) Obtaining a Road Occupancy Permit and, if applicable, an approved Municipal Consent in accordance with Schedule A of this Agreement; and (b) Providing detailed construction design drawings when required due to the nature of the Work, to the satisfaction of the Director; and (c) Prior to commencing any Work, the Company shall obtain all applicable permits from the Municipality and other regulatory agencies. 4.1 In cases where the Company's Work consists of minor maintenance procedures or other routine activities which do not disrupt the surface of the Right-of-Way, the Director may, at his or her sole discretion, elect to waive the formal procedures for obtaining a Road Occupancy Permit, in consideration of a mutually agreed procedure such as email ; 5 notification. Such procedure must be agreed to annually in writing by the Director, and will only be considered where the Company has established a history of excellent communication and service with the Municipality, and adhering to permit conditions. 4.2 The requirements of this section may be waived in the event of an Emergency, provided the Company notifies the Municipality, adheres to all other provisions of this Agreement, and subsequently satisfies the requirements of this section within five (5) business days. 5. The Company acknowledges and agrees that the Municipality may refuse to grant approval with regard to any proposed location for reasons of aesthetics, public health and safety, conflicts with the Municipality's infrastructure, proposed road reconstruction or the proper functioning of public services identified by the Director. The Municipality may also withhold their approval where the Company has failed to rectify any default under the terms of this Agreement, subject to the Company's rights under the Telecommunications Act. 6. Notwithstanding Section 4, the Company its employees, contractors, representatives or agents may carry out routine maintenance and field testing, without the Municipal Consent of the Municipality but with the applicable Road Occupancy Permit, provided that in no case shall the Company carry out any physical disruption or change to the surface of a Right-of-Way or the use of the Right-of-Way. MANNER OF WORK 7. The Company agrees that its Work shall be subject to the following conditions: (a) All Work, including backfill materials, methods and compaction shall be conducted and completed to appropriate Municipal standards, to the satisfaction of the Director, at the Director's sole discretion, and in accordance with applicable industry standards; (b) The portions of the Plant which cross beneath streets or existing buried utility plant shall be placed in a duct, carrier pipe or be encased in concrete or as otherwise specified by the Director; (c) If the Company breaks or disturbs the surface of a Right-of-Way, it shall repair and restore the surface of the Right-of-Way to substantially the same or better condition it ~ 6 was III before such Work was undertaken by the Company in accordance with, without limitation, the Municipality's policies and standards, as amended from time to time, and to the satisfaction of the Director. Such restoration shall be completed immediately upon completion of the Work. Both parties agree that such restoration may be temporary, until such time as weather or seasonal conditions permit. Where such weather or seasonal conditions are not a factor, and if the Company fails to repair and restore a Right-of-Way to the satisfaction of the Director within seventy- two (72) hours of being notified in writing by the Municipality, the Municipality may complete such repairs and charge all costs related thereto to the Company. (d) Notwithstanding the notice period of subsection 7(c), in the event of an Emergency relating to the Company's Work or Plant, the Municipality may take any appropriate measures determined necessary by the Director, to re-establish a safe and functional environment. In cases where the emergency is caused by the Company's Work or Plant, the Company agrees to reimburse all directly related costs to the Municipality. (e) If the Municipality requires the Company's Work to be stopped because it is not conforming to the requirements of the applicable approved Municipal Consent or is being carried out contrary to the terms and conditions of this Agreement or for any reasonable cause relating to public health and safety or special events identified by the Municipality, or as a result of any circumstances beyond the control of the Municipality as expressed by the Director, acting reasonably, the Company shall cease all such Work forthwith upon receipt of written notice from the Municipality (which shall include the reason for such action) and leave the site and all adjoining Right-of-Ways in a safe and clean condition. The Company shall be allowed to resume its Work activities once the reasons for the Work stoppage have been resolved to the satisfaction of the Director, in writing; (f) The Company shall be responsible for all excavation, installation, repan, maintenance, replacement or removal of the Plant including the cost of such Work when such Work is initiated by the Company; and ) 7 (g) All contractors working for the Company shall have proper identification visible on site displaying the name of the Company they are working for. THE COMPANY'S WARRANTIES 8. The Company represents and warrants to and covenants and agrees with the Municipality that: (a) After completion of its Work, the Company shall leave the Right-of-Way in a sanitary, neat, clean, and safe condition and free from nuisance, all to the satisfaction of the Director; (b) The Company warranties its restoration Work of the Right -of-Way to the satisfaction of the Municipality, for a period of three (3) years from the date of completion; (c) If, as pennitted by this Agreement, the Agreement is tenninated by the Municipality, all the unfulfilled covenants, indemnities and obligations of the Company herein shall survive such termination. (d) Where the Municipality requests additional capacity in order to mmmuze future disruption to the Right-of-Way and provided such does not unduly delay the Company's project, the Company agrees to install up to two (2) additional ducts not exceeding thirty (30) meters in length per location. Such requests shall be made by the Municipality in writing at the time of Municipal Consent. The Municipality shall pay only for the incremental costs of supplying and placing such additional ducts, which shall thereafter be owned by the Municipality. Where the Municipality requires additional capacity to resolve existing constraints, to specifically benefit an imminent project or to satisfy a request they have received from a third party, then the Company and the Municipality agree to share costs proportionally, including engineering and design costs. The Municipality shall be solely responsible to recover its costs from any third parties making such a request to them. 1 , 8 THE MUNICIPALITY'S WARRANTY 9. The Municipality has made no representations or warranties as to the state of repair of the Rights-of-Way or the suitability of the Rights-of-Way for any business, activity or purpose whatsoever and the Company hereby agrees to accept the Rights-of-Way on an "as is" basis. AS-CONSTRUCTED DRAWINGS 10. When requested by the Municipality at the time of Municipal Consent, the Company shall provide "as-constructed" drawings at its expense. All such requested "as-constructed" drawings shall be submitted to the Municipality within three (3) months of installation of the Plant, in hard copy or digital format and shall include all necessary details, to the satisfaction of the Director. In exchange for waiving the requirement to provide "as- constructed" drawings to the Municipality for every project, the Company agrees to provide accurate, timely locates of their Plant, as outlined in Section II. In addition, where Plant is suspected or found to be in an unapproved location, the Company agrees to provide or acquire "as-constructed" information without delay, to the satisfaction of the Director, to assist in determining a course of action as outlined in Section 20 of this Agreement. PLANT LOCATES II. The Company agrees to identify, verify and validate the location of all existing Plant to the Municipality, or its consultants, as required for the design of the Municipality's maintenance or new construction projects at the Company's cost, in the following order of priority: (a) Design plans, once received by the Company shall be marked up and returned to the Municipality or its consultant no later than fifteen (15) business days after receipt of such drawings; (b) The Company and the Municipality shall meet to discuss potential design and construction conflicts, upon request, and work to resolve them; (c) Where the Municipality and the Company are unable to determine if the proposed project design is susceptible to a conflict based on the information provided by the 9 Company as to the location of the existing Plant, the Company shall undertake a field investigation to verify the accurate location of the Plant at no cost to the Municipality or its consultants. If, for design purposes, the level of accuracy of such locating methods is deemed insufficient by the Municipality, the Municipality may request the Company pursue alternate methods which may include daylighting or other subsurface utility engineering methods. Since the Company will be responsible for damages due to incorrect or insufficient locates as detailed in Section 13, the Company shall determine the extent and degree of locating that shall be completed. Where such increased levels of locating methods are employed by the Company, they will be provided by the Company at no cost to the Municipality or their consultants. Due to the costs involved, both parties agree to limit daylighting requests to areas of potential conflict and to work together cooperatively to avoid unnecessary costs. 12. In cases of Emergency, the Company shall, at no cost to the Municipality, provide locates of its Plant within two (2) hours of receiving a request, using reasonable best efforts. In the case of an emergency, the party requesting the locate will either have a representative on site or provide a contact number for a representative, in order to ensure the locates can be completed in the affected area. In all other circumstances the Company will provide Plant locations within a time reasonably agreed upon by the Company and the Municipality. COST RECOVERY DUE TO CONFLICTS WITH PLANT 13. Where the Company's mark-up drawings, locates or actual Plant location are found to be inconsistent with the approved location, or if the method or level of locating provided by the Company did not accurately locate their Plant, and where the Municipality may incur any direct or indirect costs as a result of the actual location of the Company's Plant, the Municipality shall immediately notify the Company. If the Company is unable to rectify the problem in a reasonable time commensurate with the situation, the Company will compensate the Municipality for any reasonable and verifiable additional costs which the Municipality incurs as a direct result of inaccurate or insufficient locates. The Municipality agrees to make every effort in the field to minimize these costs to the Company. 10 14. The Company and the Municipality shall provide to each other a list of 24 hour emergency contact personnel available at all times and shall ensure that the aforementioned list is kept current. 15. The Company agrees to consider participating in a common utility locate notification system recommended by the Municipality, where feasible. The Company further agrees to participate in any utility co-ordination committees involving all users of the Rights-of-Ways as may be established or as requested by the Municipality and to contribute to the reasonable costs of such committees. 16. The Company shall use reasonable efforts to coordinate Work in the Rights-of-Way and share the use of support structures with other service providers occupying and using or intending to occupy or use the Right -of-Way, with the intent of minimizing the necessity for road cuts, construction and the placement of additional support structures in the Right-of- Way. RELOCATION OF PLANT 17. Upon receipt of not less than sixty (60) days written notice from the Municipality, or such additional advance notice as is reasonable, having regard to the nature of the relocation required, the Company shall relocate its Plant within a Right-of-Way, or perform any other Work in connection with the Right-of-Way as may be required by the Municipality for municipal purposes. 18. In cases of Emergency, both parties agree to work co-operatively and apply commercially reasonable best efforts to relocate Plant immediately as directed by the Director, acting reasonably, provided that in cases of Emergency, the Municipality may take any measures deemed necessary that may be required in the circumstances by the nature of the Emergency. 19. The Municipality will make a good faith effort to provide alternative suggestions for re- routing the Plant affected by the relocation or adjustment to assist the Company in its efforts to ensure uninterrupted service to its customers. 11 20. The responsibility for the costs incurred in relocating the Company's Plant or performing such Work referenced above will, for the purposes of this Agreement, be based upon the following, and shall comprise all directly related relocation costs including labour, labour saving devices and materials in kind. The Company agrees to make every effort to minimize the costs to the Municipality. (a) For relocation costs for Plant installed after the execution of this Agreement, the following sliding scale shall apply: Plant installed subject to Municipal Consent between the Company and the Municipality within four (4) years of the consent approval being granted for the installation of such Plant, the Municipality will be responsible for all reasonable relocation costs. For subsequent years, the Municipality will be responsible for the following percentage of reasonable relocation costs: Year 5 75% Year 6 50% Year 7 25% Year 8 0% For purpose of this section, the date to be used for calculating the relocation costs will be the date of the Municipal Consent. The Municipal Consent date associated with any Plant installed in or attached to the Company's support structures shall be the Municipal Consent date for the construction of the Company's support structure(s). (b) For all Plant requiring relocation which has been installed prior to this Agreement, the cost to the Municipality for relocating Plant shall be based on the methodology outlined in the Public Service Works on Highways Act, RSO 1990. This applies only to Plant installed between January 1, 2000 and the date of this Agreement. Both 12 parties agree to revisit and, if appropriate, renegotiate this clause upon renewal of the Agreement; (c) The Company will provide to the Municipality a written estimates for each relocation in a format clearly identifYing the percentages and dates being applied to each part of the Company's Plant for the purpose of calculating relocation costs; (d) In the case where the Municipality cannot guarantee an ultimate location for the proposed Plant due to the Municipality's capital works plan, or because of projects scheduled within the Municipality's five or ten year capital works plan, the Municipality's location consent may be considered conditional, and the Company may be required to relocate its Plant at its full cost, even if such relocation is required less than seven years since the permit was issued; (el In the case where the Company's Plant is found to be in non-compliance with any aspect of the approved location, the cost for relocating the Plant will be paid for by the Company. The Municipality will, to the best of its ability, avoid unnecessary relocations and agrees to work with the Company to weigh relocation alternatives, but reserves the right to request such relocation as required; (f) In the case where the Company's Plant is found to be inconsistent with the approved location as identified in Section 13, that portion ofrelocation costs attributable to the Plant in non-compliance with the approved location will be paid by the Company. 21. Both parties agree that special circumstances may arise with respect to specific location approvals whereby it may be appropriate for the parties to mutually agree to waive the above-noted provisions and to negotiate alternative arrangements. These alternative arrangements shall be agreed upon in writing. 22. In no event shall the Company charge the Municipality, nor shall the Municipality be responsible for costs incurred by, or charged to Licensees to relocate their Plant installed on t , , 13 or in the Company's Plant, unless the Municipality has an agreement with such Licensees for alternate arrangements. 23. The relocation of Plant requested by parties other than the Municipality or those not required for Municipal purposes, shall be at the discretion of the Company acting reasonably and all of the costs of such relocations will be charged directly to the party requesting such relocation. An agreement in writing by each party to assume responsibility for all such relocation costs shall be required prior to commencing any of the associated relocation Work. All relocations requested under this section, shall be subject to obtaining Municipal Consent and all other applicable permits. 24. If the Company fails to complete the relocation or removal of the Plant in accordance with this Agreement or fails to repair and restore the Rights-of-Way or do anything else required pursuant to this Agreement in a timely and expeditious manner to the satisfaction of the Director, acting reasonably, the Municipality may, at its option complete such relocation, removal, repair or restoration. The Company shall pay the cost of such relocation, repair, removal, restoration or other Work to the Municipality forthwith plus an overhead equal to fifteen percent (15%) of such cost. In default of payment thereof, the amount of such cost with interest equal to the prime lending rate of the Municipality's principal financial institution carrying on business in the Municipality shall be due and payable by the Company. INDEMNIFICA nON AND LIABILITY 25. The Municipality shall not be responsible, either directly or indirectly, for any damage to the Plant howsoever caused by the public or by third parties, or that may occur during excavation, installation, maintenance or removal by the Company except for any claims arising from the gross negligence or wilful misconduct by the Municipality or those for whom it is in law responsible. The Municipality shall be liable to the Company or for those whom it is in law responsible, for any and all losses, claims, charges, damages and expenses I 14 whatsoever suffered by the Company on account of any actions or omiSSIOns of the Municipality, its Chair, Council members, officers, employees, contractors, agents, successors and assigns working in, under, over, along, upon and across a Right-of-Way, except for any claims arising from the negligence or wilful misconduct by the Company or those for whom it is in law responsible. 26. The Company covenants and agrees to indemnity, defend and save harmless the Municipality, its Chair, Council members, officers, employees, contractors, agents, successors and assigns from and against all losses, claims, including claims for injurious affection, charges, damages and expenses which the Municipality may at any time or times bear, sustain or suffer, by reason, howsoever caused, or on account of the design, placement, installation, relocation, maintenance or use of the Plant, in, on, under, over, along or across a Right-of Way except for any claims arising from the gross negligence or wilful misconduct of the Municipality or those for whom it is in law responsible working in, under, over, along, upon and across its Right-of-Way, and the Company shall, upon demand by the Municipality and at its own sole risk and expense, defend any and all suits, actions or other legal proceedings which may be brought or instituted by third persons against the Municipality on any such claim, demand or cause of action, and will pay and satisfy any judgement or decree which may be rendered against the Municipality in any such suit, action or other legal proceeding, and shall reimburse the Municipality for any and all reasonable legal expenses on a solicitor-client basis incurred in connection therewith. The Company's obligation to indemnity, defend and save harmless the Municipality shall survive the termination of this Agreement. (a) If the Municipality becomes aware of any claim to which the Company's indemnity as set out above or elsewhere in this Agreement applies, the Municipality will promptly, once becoming aware of the claim, advise the Company in writing. The Municipality will provide reasonable particulars, to the extent of the Municipality's knowledge, of the factual basis for the claim and the amount of the claim. 15 (b) With respect to any third party claim, the Company will have the right at its expense, to participate in or assume control of the negotiation, settlement or defence of the claim. (c) If the Company does not assume and continue control of the defence of any third party claim within fifteen (15) business days of the initial written notice of the claim from the Municipality, then the Municipality shall have the exclusive right to contest, settle or pay the amount claimed, and shall have the right to recover all amounts in full from the Company. (d) Where the Company assumes control of any third party claim, the Company has the right to settle the claim on such terms and conditions as are acceptable to the Company and the Municipality, and will provide and execute such releases or such other documentation as may be necessary to complete the settlement of such claim. 27. Despite anything contained in this Agreement, the Municipality and the Company shall not be liable to each other in any way for special, incidental, indirect or consequential losses, including damages for pure economic loss, howsoever caused or contributed to, in connection with this Agreement or with the Plant or the Right-of-Way, even if advised thereof. TERM 28. The initial term of this Agreement shall be five (5) years, commencing on the first day of the month following the date in which the Agreement is executed, and shall automatically renew for additional five (5) year periods upon the same terms and conditions contained herein, including payment of the annual fee, unless terminated by either party, in writing, at least thirty (30) days prior to the expiry of the term. However, if the Agreement is terminated, then, subject to the Company's rights under the Telecommunications Act, all rights and privileges hereunder shall come to an end, provided that notwithstanding such termination the Company shall continue to be liable to the Municipality for all payments due for permits fees and any costs for relocations according to the terms outlined in this Agreement, and for other obligations incurred hereunder prior to the date of such 16 termination including providing timely locate services, relocations, maintaining and repairing its Plant, and keeping insurance in place as described in Section 39 herein. Despite any such termination, the Plant will continue to be the property of the Company and the Company shall be permitted to continue to maintain, test, repair and operate its Plant for as long as necessary as determined in the sole discretion of the Company, except where deemed abandoned as described in Section 52. These provisions shall survive termination of this Agreement. PAYMENT OF FEES 29. The Company covenants and agrees to pay to the Municipality fees calculated in accordance with the Municipality's schedule of fees and charges as amended from time to time by mutual agreement and calculated in accordance with Schedule "A" in this Agreement. 30. The Company covenants and agrees to pay a pavement degradation fee for any road cut as outlined in Schedule "B" of this Agreement. 31. The Company acknowledges and agrees that the fees payable pursuant to this Agreement relate to Road Occupancy Permits, Municipal Consents and Pavement Degradation fees only, and are exclusive of any fees and charges that may be applied by the Municipality with respect to any other permits required for the Company's Work. LEGISLATIVE CHANGE 32. If at any time subsequent to the entering into of this Agreement the Provincial or Federal government or a regulatory authority, acting within its jurisdiction, enacts or repeals any legislation or regulation, or orders, directs or mandates anything which pertains to the subject matter of this Agreement then either party may notify the other of its intention to require the other party to enter into good faith negotiations to amend this Agreement, or to enter into a new agreement reflecting such legislative or regulatory action or court or tribunal decision, as the case may be, within thirty (30) days after written notice (the "Notice") from the notifying party and any newly mandated terms and conditions, charges \ 1 17 or fees pursuant to such new or amended agreement will take effect from the date upon which the Notice expires. If the parties are unable to re-negotiate the terms and conditions of this Agreement then the unresolved matters may, within thirty (30) days prior written notice from the requesting party, be referred by the party to arbitration for resolution, in accordance with the Ontario Arbitration Act, as amended or its successor legislation, or to the CRTC. Subject to the right to request arbitration, if an amendment to this_Agreement or a new agreement is not reached within ninety (90) days from the date on which the Notice was received, either party may terminate this Agreement without further notice and both parties shall fulfil their respective obligations thereafter in accordance with this Agreement. SECURITY 33. The Company agrees to post a "blanket" irrevocable letter of credit, or other form of security acceptable to the Municipality, at a value and term determined by the Municipality to ensure all restoration costs and obligations are met. (Notwithstanding the above, the Municipality reserves the right to acquire additional securities for significant projects beyond the scope of the original irrevocable letter of credit). Should the Municipality draw on this "blanket" security, the Company shall immediately reinstate the security to the original value in effect at the time of drawing. If the Company does not agree with the value of said "blanket" security, it may alternatively post an individual irrevocable letter of credit for each application for the Municipality's consent in a form acceptable to the Municipality, in an amount equal to any and all restoration costs as determined by the Director. The individually posted letters of credit shall be released once the conditions of the applicable Municipal Consent and this Agreement have been fulfilled to the satisfaction of the Director. In the event that the Company has and/or maintains an excellent business relationship with the Municipality, the Director may, at his sole discretion, waive or reduce the requirement for securities under this section. 34. The Company agrees that the Municipality may draw on securities held, to complete the unfulfilled obligations of the Company under this Agreement. \ 18 DEFAULT 35. The Municipality and the Company mutually agree that should the Company materially fail to carry out any of the terms, covenants and conditions contained herein or default in any of its obligations under the terms hereof and fail within thirty (30) days after receiving written notice from the Municipality to correct any such failure, then this Agreement may, at the option of the Municipality be tenninated by giving written notice to be effective upon receipt, provided that the Company shall continue to be liable to the Municipality for all payments due and obligations incurred under the Agreement prior to such termination. 36. Despite section 35, this Agreement may be terminated immediately and without prior notice by the Municipality in the event that: (a) the Company becomes insolvent, makes an assignment for the benefit of its creditors, has a liquidator, receiver or trustee in bankruptcy appointed for it or becomes voluntarily subject as a debtor to the provisions of the Companies' Creditors Arrangement Act, the Bankruptcy and Insolvency Act, as amended from time to time, or any successor legislation; (b) the Company transfers, assigns, or sublicenses any part or all of its interest in this Agreement other than in accordance with the provisions of this Agreement, or attempts to do same; (c) the Company ceases to operate as a Canadian carrier within the meaning of the Telecommunications Act or to be licensed as a distribution undertaking within the meaning of the Broadcasting Act, pursuant to the Telecommunications Act or the Broadcasting Act as amended from time to time, or any successor legislation; or (d) The Company violates any law or by-law in connection with the use of a Riglit-of- Way and fails to remedy the violation to the satisfaction of the Director, acting reasonably, in an expedient manner. , . I 19 ASSIGNMENT 37. This Agreement may be sublicensed, granted, transferred or assigned: (a) By the Municipality or the Company in its entirety, to a single sublicensee, grantee, transferee or assignee with the other's prior consent in writing, which consent shall not be umeasonably withheld; or (b) By the Company during the term of this Agreement without the Municipality's prior consent in writing; 1. Upon having first given notice to the Municipality of the sublicense, grant, transfer or assignment; and 11. Provided the sublicensee, grantee, transferee or assignee is an affiliate of the Company within the meaning of the Canada Corporations Act as amended from time to time; and ( c) Despite the sublicense, grant, transfer or assignment of this Agreement by the Company, the Company will remain fully responsible to the Municipality for fulfillment of the obligations and liabilities of the Company described in this Agreement regardless of whether the obligations or liabilities arise out of any acts or omissions by the sublicensee, grantee, transferee or assignee, but only until such time as the sublicense, grantee, transferee or assignee enters into a separate agreement with the Municipality. (d) The Company may pledge the license granted by this Agreement as security without the consent of the Municipality to any person directly or indirectly providing financing to the Company but such pledge shall not release the Company from its obligations and liabilities under this Agreement. NO OWNERSHIP RIGHTS 38. No use of a Right-of-Way under this Agreement shall create or vest in the Company any ownership or property rights in a Right-of-Way, and the Company shall be and remain a ( 20 mere non-exclusive occupant of the Right-of-Way. Placement of the Plant in a Right-of- Way shall not create or vest in the Municipality any ownership or property rights to the Plant, except as provided in this Agreement. INSURANCE 39. The Company shall maintain insurance in sufficient amount and description as will protect the Company and the Municipality from claims for bodily injury including death, and for claims from property damage which may arise from the Company's operations in the Municipality under this Agreement, including without limitation, the use or maintenance of the Plant on or in the Rights-of-Way or any act or omission of the Company's agents or employees while engaged in its Work and such coverage shall include all costs, charges and expenses reasonably incurred with any injury or damage. In addition to the foregoing the Company covenants and agrees as follows: (a) The Company shall maintain at its expense during the term of this Agreement comprehensive general liability occurrence-based insurance coverage with an insurer licensed to sell insurance in Ontario covering claims and expenses for liability for personal injury, bodily injury and property damage in an amount not less than Five Million ($5,000,000.00) Dollars per claim exclusive of interest and costs and such insurance shall include the contractual obligations of the Company as stated within this Agreement and name the Municipality as an additional insured; (b) The Company shall complete any insurance certificate forms as required by the Municipality; (c) All policies shall provide that they are primary insurance which will not call into contribution any other insurance available to the Municipality, and shall provide a waiver of subrogation and for severability of interest. Such insurance shall not be cancelled or materially changed to the detriment of the Municipality, acting reasonably, without at least thirty (30) business days notice to the Municipality by registered mail; t 21 (d) The insurance coverage required under this Agreement shall not be construed to, and shall in no manner, limit or restrict the Company's liability or obligations under this Agreement; and (e) Forthwith upon the execution of this Agreement, the Company shall provide the Municipality with certificates of insurance evidencing the insurance coverage required by this Agreement and thereafter provide renewals of such insurance coverage as required. NOTICES 40. Any notice required or permitted to be gIVen hereunder or any tender or delivery of documents may be sufficiently given by personal delivery or, if other than the delivery of an original document, by facsimile transmission to the Municipality at the following address: Municipality ofClarington 40 Temperance St. Bowmanville, Ontario LlC 3A6 Attention: A.S. Cannella, Director of Engineering Tel: 905-623-3379 Fax: 905-623-9282 and to the Company at the following address: Rogers Cable Communications Inc. 333 Bloor Street East, 9th Floor Toronto, Ontario M8Y 4G7 Attention: VP Regulatory, Municipal and Industry Relations Tel: 416-935-4818 Fax: 416-935-4655 With a courtesy copy to: Rogers Communications Inc. 333 Bloor Street East, 9th Floor Toronto, Ontario M8Y 4G7 Attention: VP and General Counsel Fax: 416-935-3548 t , , 22 Any notice may also be given by prepaid registered mail mailed within the Province of Ontario and such notice shall be effective five (5) business days following the date of mailing, except in the event that there shall be a disruption in postal services at the date of mailing, in which case notice shall be effective by personal delivery or a facsimile transmission as stated above. GENERAL 41. This Agreement is the entire agreement between the Municipality and the Company regarding the subject of this Agreement. This Agreement may only be amended or supplemented by a document executed in writing by both the Municipality and the Company. 42. This Agreement benefits and binds the Municipality and the Company and the successors of each of them. The Company shall ensure that its employees, contractors, representatives and agents abide by the applicable terms and conditions of this Agreement when completing any Work or fulfilling any obligations herein on behalf of the Company. 43. If any term of this Agreement is found to be invalid, illegal, or unenforceable by a court having the jurisdiction to do so, that term is to be considered to have been severed from this Agreement and this Agreement remains in force unaffected by that finding or by the severance of that term. 44. This Agreement creates contractual rights only between the Municipality and the Company and not an interest in the Rights-of-Way and the Company covenants and agrees with the Municipality that the Company shall cease and desist from any registration of this Agreement or of any right howsoever arising under it. 45. No amendments or waiver of any provision of this Agreement shall be binding on either party unless consented to in writing by such party. No waiver of any provision of this , I 23 Agreement shall constitute a waiver of any other provision, nor shall any waiver constitute a continuing waiver unless expressly provided. 46. In this Agreement, unless the context otherwise requires, the singular includes the plural and the masculine includes the feminine gender and a corporation. 47. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Province of Ontario and the laws of Canada which may be applicable to a party in the Province of Ontario and both parties irrevocably attorn to the jurisdiction of the Courts of the Province of Ontario. TIME OF ESSENCE 48. Each party agrees that it shall at all times act reasonably in the performance of its obligations and the exercise of its rights under this Agreement. Furthermore, time shall be of the essence in this Agreement. TREES 49. The Company is responsible for the costs of any remedial work required to rehabilitate any trees damaged in the performance of its Work permitted by this Agreement or, in the event any trees suffer irreparable damage, the Company shall compensate the Municipality for the reasonable value of the trees as determined by the Municipality. REMOVAL OF GRAFFITI 50. The Company shall take all reasonable measures, to the satisfaction of the Municipality, to clean, remove or conceal graffiti or other unauthorized markings in a timely manner from its Plant. In this regard, the Company will within forty-eight (48) hours notice from the Municipality remove or conceal all graffiti from its Plant. In the event that the Company does not remove or conceal the graffiti in accordance with this section, the Municipality may take such steps as it deems reasonable and necessary to remove or conceal the said graffiti and shall charge the cost of the removal or concealment to the Company. t , 24 ENVIRONMENTAL LIABILITY 51. The Municipality is not responsible, either directly or indirectly, for any damage to property, including any nuisance or injury to any person, howsoever caused, including death, arising from the escape, discharge, spill or release or any Hazardous Substance resulting from the Company's use of the Rights-of-Way. The foregoing release shall not extend to any loss, damage, injury or death caused by the gross negligence or wilful misconduct of the Municipality, its employees, agents, contractors or those other persons for whom the Municipality is in law responsible. The Company agrees to assume all environmental liabilities relating to its use of the Rights- of-Way including but not limited to any liability for clean-up of any Hazardous Substance on or under the Rights-of-Way which result from: (a) the operations of the Company in, on, under, over, above, along or across the Rights- of-Way, or (b) any Plant brought in, on, under, above, over, along, or across the Rights-of-Way by the Company, its contractors, agents or employees or by any person with the express or implied consent of the Company. The Municipality agrees to provide notice to the Company of any liability arising under this provision in a reasonable period of time after the occurrence. ABANDONMENT 52. Whenever the Company ceases to use, and does not expect to use (abandons), any portion of their Plant in, on, under, over, along or across a Municipal Right-of-Way, it shall notify the Municipality of the location of such abandonment within ninety (90) days. At any time after receiving notification of abandonment when directed in writing by the Municipality, the Company shall remove said Plant and restore the area to substantially the same condition at the Company's sole expense and within a time frame agreed to by the parties. Where the Municipality prefers to assume ownership of abandoned Plant rather than require its , t 25 removal, the Company agrees to sell such Plant, or any portion of it to the Municipality for a nominal fee of two dollars ($2). The Director may also request that the Company confirm the use, or potential use of any Plant that appears abandoned. Where this cannot be reasonably demonstrated, the Municipality may, after providing written notice thereof and confirming such Plant is inactive and has been inactive for at least ninety (90) days, have such Plant removed at the expense of the Company. LICENSEE ACKNOWLEDGEMENT 53. The Company agrees that it shall provide in its agreements with Licensees utilizing any portion of the Plant, an acknowledgement and agreement by those Licensees that the use of the Plant is subject to the terms of this Agreement, which may be renewed or terminated, and that they shall comply, at their sole expense, with all applicable laws, statues, by-laws, codes, ordinances, rules, orders and regulations of all governmental authorities, and that the Licensee shall obtain and maintain any and all permits, licenses, official inspections or any other approvals and consents necessary or required for the placement or operation of the Licensee's equipment. WORKERS' SAFETY AND INSURANCE BOARD COVERAGE 54. The Company shall pay to the appropriate provincial Workers Safety and/or Insurance Board/Commission all assessments and levies owing to the Board/Commission by the Company, its employees and others engaged in providing services under this Agreement and any unpaid assessment or levy shall be the sole responsibility of the Company. Prior to commencing the Work, the Company shall provide to the Director evidence of compliance with the requirements of the Province of Ontario with respect to Workers' Compensation Insurance. 55. The Company's employees, workers, agents, contractors and servants shall, at all times be required to comply with the rules of the Worker's Compensation Act, the Ontario Occupational Health and Safety Act and Regulations, The Canada Labour Code Part II as they apply to the Company, its employees and contractors, or any amendments or additions '\ t 26 thereto, and when applicable, all by-laws, regulations and rules which apply to performance of Work on public highways or private property which relate to the safety of workers and the public when performing Work related to this Agreement. 56. If the Municipality becomes involved in a charge, offence, prosecution, civil litigation or any other legal proceedings under or related to the O.H.S.A. or any regulations under the O.H. S.A. arising out of or related to a breach of the Agreement by the Company or the Company's performance or lack of performance of the Agreement or the Company's violation of the O.H.S.A or any regulations thereunder, then the Company shall be fully liable for, indenmify and pay the Municipality's fine, penalty, judgement, debt, damages and reasonable legal fees and disbursements limited to the extent of negligence of the Company and those over whom it is responsible in law. 57. The Company acknowledges that out-of-province contractors are not exempt from having to register and comply with the requirements of the Workers' Safety and Insurance Board of Ontario. Prior to commencing the Work, out-of-province contractors not required to be registered in Ontario shall provide: (a) written confirmation from the Workers' Safety and Insurance Board of Ontario stating that the contractor is not required to be registered in Ontario; and (b) evidence of compliance with the requirements of the province or territory or place of business with respect to workers' compensation insurance. At any time during the term of this Agreement, when requested to do so by the Municipality, the Company shall provide such evidence of compliance by itself and its subcontractors. Failure to provide satisfactory evidence in respect of workers' compensation insurance may result in current permits being suspended and/or future permits being denied by the Municipality until satisfactory evidence of compliance has been received by the Director. . , 27 IN WITNESS WHEREOF the parties hereto have executed this Agreement by their duly authorized representatives. ) THE MUNICIPALITY ) ) ) Per: ) ) ) THE COMPANY ) ) ) ) ) ) Per: Per: ) ) ) Per: ) ) - '/ ::- ';). . !a.~1l ?:Yu'lSn&CPcL PAM DINSMO VP REGULA DRY " , Schedule A Municipal Consent Permits and Fees TYPE OF WORK CONSENT ROAD OCC. MUNICIPAL FEE PERMIT? CONSENT? MAINTENANCE: -testing. checking, verifying equipment N.A. No No -simple routine technical maintenance -brief boulevard access not damaging grass or affecting traffic/pedestrians SHORT PERMIT: -extended boulevard access or access exceeding limitations noted above *Yes Yes No -placing buried service wires -extension of existing services less than 20m, no pavement encroachment -non-disruptive new cable pulling -exploratory daylighting or test pits -other small or singular installations LONG PERMIT: -extension of existing services exceeding 20m **Yes Yes Yes -any work encroaching into pavement -new subdivision work -any work not listed under Maintenance/Short Permit * Short Permits $25 each. (Annual base MAA fee of $5,000 includes first 100 Short Permits.) Next 400 Short Permits $15 each. Permits beyond 500 annually $7 each. *' Long Permits $405 each per street, (includes 20m into adjacent streets). Notes: 1 Type of Permit (MainVShortlLong Permits) shall be at the sole discretion of the Director, based on the above factors. 2 An all inclusive annual fee may be offered by the Director to the Company on an annual basis, based on past volumes of work. Such fee does not include any undisclosed extraordinary projects. Where accepted, such annual fee is payable in advance_ For the purposes of this Agreement, the Company agrees to pay an annual fee in the amount of Fifteen Thousand Dollars ($15,000) which represents the Municipality's base MAA fee, anticipated causal costs, inclusive of all Road Occupancy, Short and Long Permit fees, administration, review, coordination, inspection and the Company's contribution to any Municipal co-ordination committee processes. , i -, .Ie ::".' .,.' Schedule B Pavement Degradation Compensation The following pavement degradation compensation shall be payable by the Company to the Municipality where the Company disrupts the Municipality's pavement. The Company agrees to pay such fees in accordance with the estimated age of the pavement, as determined at the sole discretion of the Director. Pavement aged 15 years or less: $24/sq. metre Pavement aged 16 years or more: $12/sq. metre CERTIfiCATE Of INSURANCE Date: Revised February II, 2008 The Insurer(s) hereby states that it has issued to the insured named herein a policy or policies of insurance providing the type of insurance and limits of liability set forth herein. This certificate of insurance neither affinnatively nor negatively amends, extends or alters the coverage, limits, [enns or conditions of the policy it certifies. Certlflcate Holder: Named Insured: The Corporation of the Municipality of Clarington, 40 Rogers Cable Communications Inc., 333 Bloor Street East, 9th Tamnarance Street, Bowmanville, Ontario L 1C 3A6 Floor, Toronto, Ontario M4W 1G9 COVERAGE PROVIDED ONLY FOR THE FOLLOWING SECTIONS: A, S, C, D, E, F, G, H, P, Q INSURER" POLICY PERIOD SECTION TYPE OF POLICY POLICY NO. MIDIY LIMITS OF LIABILITY A Commercial General Liability American Home OS/01107 - Each Occurrence $2,000,000 Assurance- 06/01/08 RMGL9a9SSS0 B Products and Completed Operations C Owners and Contractors protective Products I Completed $2,000.000 Operations - Aggregate 0 Blanket Contractual Liability E Occurrence Bodily Injury & Property Tenant's Legal Liability Damage F Employers Liability G Cross Liability - Severability of Non-Owned Interests Clause Automobile H Personal Injury I Property Property of Every Description or J Certificate Holder Loss Payee Building K . All Risks, subject to policy Equipment exclusions L . Replacement Cost Stock M . Stated Amount of Co~insurance Property of Others N . Other: Tenants Improvement Business Interruption 0 Boiler & Machinery Limit Per Accident Comprehensive Form p Umbrella Liability American Home OS/01/07 - Limits $5,000,000 Assurance. 06/01/08 BE6849066 Q Waiver of Subrogation is induded. If required by contract, the certificate holder is added to the policy(ies) as an additional insured but only with respect to liability arising out of the operations/negligence of the Named Insured. The Insurer(s) agrees to provide 30 days notice to the holder of this certificate of any material change adverse to the certificate holder or cancellation by the Insurer of these policies. ~ Authorized Representative THOMAS I. HULL INSURANCE LIMITED