HomeMy WebLinkAbout2002-127 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NUMBER 2002- 127
Being a By-Law to Authorize
Entering into an Agreement with
Telus Mobility and with Williams Communications
NOW THEREFORE BE IT RESOLVED THAT the Municipality of Clarington give
authority to the City of Oshawa to enter into lease agreements on behalf of the Municipality of
Clarington,with Telus Mobility and with Williams Communications to co-locate on towers
owned by them in the Municipality of Clarington;
THAT the Purchasing By-Law#94-129, Section 5, Paragraph 5.06 be waived for the lease
agreements and for the costs associated with the purchase of service and equipment required
to facilitate the Clarington dispatch centre as approved by Council on May 27, 2002.
By-Law read a first and second time this 12th day of July, 2002.
By-Law read a third time and finally passes this 12th day of July, 2002.
John Mutton, Mayor
a eye eputy Cle
Department of Corporate Services
Tuesday, January 28, 2003
Our File No. D-4110-0195 2003
City of Pickering —Attention: Clerk's Office
1 The Esplanade
Pickering, Ontario
L1V 6K7
Town of Ajax—Attention: Clerk's Office
65 Harwood Avenue South
Ajax, Ontario
US 2H9
Town of Whitby—Attention: Clerk's Office
575 Rossland Road East
Whitby, Ontario
L1 N 2MB
Municipality of Clarington —Attention: Clerk's Office
40 Temperance Street
Bowmanville, Ontario
L 1 C 3A6
RE: License Agreement between City of Oshawa in Trust for the City of Pickering, Town of
Ajax, Town of Whitby, City of Oshawa and the Municipality of Clarington and
Tele-Mobile Company
We are pleased to enclose a fully executed copy of the above-mentioned Agreement for your
records.
If you need further information, please contact me at the address below or evyl®r -Ilephoneat 905-
436-5648 or Marian O'Connor at 905-436-5636 at extension 2231.
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✓Lon G. Knox �.. :� ... � _,. .....
UU Solicitor, Legal and Real Estate Services
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Encls. -
The Corporation of the City of Oshawa
Legal and Real Estate Services
50 Centre Street South, Oshawa, Ontario L1 H 3Z7
TEL: (905) 436-3856, FAX: (905) 436-5689
Licensor Site Name:Hwy 115I11wy 9 Licensee Site Name:
Licensor Location Code:ON0908 Licensee Site Number:
LICENSE AGREEMENT
BETWEEN:
TELE-MOBILE COMPANY,
(hereinafter referred to as "TELUS Mobility")
AND
CITY OF OSHAWA IN TRUST FOR THE CITY OF PICKERING,TOWN
OF AJAX,TOWN OF WHITBY,CITY OF OSHAWA,AND THE
MUNICIPALITY OF CLARINGTON
(hereinafter referred to as "the Licensee")
TELUS Mobility grants a non-exclusive license to the Licensee and the Licensee
accepts from TELUS Mobility a non-exclusive license to use and occupy the
Licensee Space, at the License Fee and for the Term described below (subject to any
earlier termination as provided for in this Agreement) and in accordance with the
further terms and conditions set out in this Agreement. The following expressions
have the following meanings in this Agreement:
"Agreement": this license agreement, including the attached Terms and Conditions
and Schedules;
"Building": the portable building owned by Licensee and located at the Premises,
and used to house any or all Licensee Equipment;
Head Lease": the license agreement or lease agreement (as assigned and amended,
if applicable) between TELUS Mobility and the owner of the Premises pursuant to
which TELUS Mobility has the right to occupy and the particulars of which are:
"Term of the Head Lease": Five(5)years commencing on April 1, 1999;
"Licensee Equipment": radio, telecommunications and associated equipment, such
as (but not limited to radios, antennae, power equipment, and batteries, owned or
operated by the Licensee and used by it to provide radio and other
telecommunications services from the Tower and Building as described in Schedule
"B"hereto attached;
"License Fee": Two Thousand Seven Hundred Dollars ($2,700.00) per annum and
pro-rated where necessary during the Term;
"Licensee Space": the Building and space on the Tower designated by TELUS
Mobility as being for the use and occupation by the Licensee that is more
specifically described in Schedule"B";
"Premises": those lands leased or licensed for use by TELUS Mobility under the
Head Lease and legally described on the attached Schedule"A";
"Renewal Term": Two (2) terms of Five (5) years each commencing at the expiry
of the Term or on the renewal term as provided herein;
"TELUS Mobility Equipment": the equipment, installations and buildings (if
applicable)of TELUS Mobility at the Premises;
"Term" One (1) year and five (5) months commencing on November 1, 2002 and
ending March 31, 2004, or on the date the Head Lease terminates or expires
whichever time period occurs first;
"Tower": the communications tower located at the Premises and owned by TELUS
Mobility;
The Term of this Agreement cannot extend longer than the term of the Head
Lease for the Premises. Any renewal of this Agreement cannot extend past
the end of the term of the Head Lease for the Premises;
Initials:
Licensor Site Name:Hwy 115/Hwy 9 Licensee Site Name:
Licensor Location Code:ON0908 Licensee Site Number:
The parties have executed this Agreement on the dates written below:
TELE-MOBILE COMPANY carryi on
business 9 TELUS Mobility
PER:
Scout Anwyll,Manager Real Fs
200 Consilium Place, Suite 1600
Scarborough,Ontario
M1H 3B
Attention:Manager,Real Estate—Property Management
Phone No: (800) 815-5715
Fax No: (416)279-3181
(Date)
THE CORPORATION
OF THE CITY OF OSHAWA IN TRUST FOR THE CITY OF PICKERING,TOWN
OF AJAX,TOWN OF WHITBY,CITY OF OSHAWA,AND THE
MUNICIPALITY OF LARINGTON
G
PE
Nancy DiamjV,Mayor of Oshawa Date
PER: c. a�)P—GexvN.'C - I(a, oho oa
Sandra Kranc,Clerk Date
50 Centre Street South
Oshawa, Ontario
L1H 3Z7
Attention: Lon Knox
Phone No. (905)436-5648
Fax No. (905)436-5689
Initials:
Licensor Site Name:Hwy 115/Hwy 9 Licensee Site Name:
Licensor Location Code:ON0908 Licensee Site Number:
TERMS AND CONDITIONS
TERM
1. This Agreement is effective for the Term,unless otherwise terminated as set out in this Agreement.
RENEWAL
2. Provided TELUS Mobility remains the lawful occupier of the Premises, and provided the Licensee pays the
License Fee when due and performs and observes all the covenants,provisos and conditions on the Licensee's part
herein contained, TELUS Mobility hereby grants to the Licensee the option(s) to renew this Agreement for the
Renewal Term provided that in order to exercise the option granted herein the Licensee shall give to TELUS
Mobility not less than one hundred and eighty (180) days prior written notice of its intention to exercise the
aforesaid option and provided always that the tower and other facilities licensed hereunder for use by the Licensee
are, at the time of such renewal and in TELUS Mobility's opinion, technically and/or structurally acceptable for
continued use.
3. Any renewal pursuant to this Agreement shall be upon the same terms and conditions contained in this license,
except that:
a) there shall be no additional right of renewal;
b) the License Fee payable by the Licensee for any optional renewal period under this Agreement
shall be based on the fair market value of similar installations in the area.
LICENSE FEE
4. As consideration for the use of the Licensee Space, the Licensee agrees to pay the License Fee to TELUS
Mobility during the Term and any renewals as provided here-in.The License Fee is to be paid in advance on or
before the commencement of the Term and any permitted renewals and thereafter on or before each anniversary
date of the commencement of the Term and any permitted renewals.
5. In addition to the License Fee,the Licensee shall pay:
(a) any sales, excise, goods and services, capital or other taxes that may be properly imposed by a
competent government authority in respect of the License Fee,the Licensee Equipment,this Agreement
or the Licensee's use and occupation of the Building and Tower,and which shall be paid by the Licensee
to TELUS Mobility in addition to the License Fee, at the same time and in the same manner as the
License Fee or upon receipt of an invoice by TELUS Mobility;
(b) any taxes,charges,or License Fees levied or imposed by any competent government authority in respect
of the business,operations,property or income of the Licensee,which shall be paid by the Licensee to
the competent government authority if billed directly to the Licensee,or if billed directly or indirectly to
TELUS Mobility;
(c) unless provided for otherwise under the attached Schedule`B",the Licensee shall pay for the electrical
connections and for all electricity charges attributable to the Licensee's operations at the Premises either
by having installed a separately metered hydro service and compensating the local Utility directly or,in
circumstances where the local Utility will not charge the Licensee directly, the Licensee shall install a
sub-meter and shall compensate TELUS Mobility for the Licensee's electricity consumption when billed
by TELUS Mobility based on semi-annual sub-meter readings and charged at the existing rates of the
local utility;and
(d) if, by reason of any act or election of the Licensee, the use and occupation of the Premises by the
Licensee, or the presence of the Licensee Equipment at the Premises, the Premises or any part thereof
are assessed an increased rate or assessment,the amount by which the resulting tax, charge,rate, duty,
levy or assessment exceeds those which would otherwise have been payable,and which shall be paid by
the Licensee to the competent authority if billed directly to the Licensee,or if billed directly or indirectly
to TELUS Mobility.
6. Any such amounts that are not payable with the License Fee shall be paid by the Licensee within ten(10)days
of receipt of an invoice from TELUS Mobility for such amounts.Any amounts owing under this Agreement and
unpaid by the Licensee when due shall bear interest at eighteen(18%)percent per annum prorated from the due
date until paid both before and after default and judgement.
7. Any increase in general operating,maintenance or repair costs(including but not limited to rent increase pursuant
to the Head Lease,and tower maintenance expenses)paid or payable in respect of the Premises,may, at TELUS
Mobility's reasonable discretion, be fairly apportioned among TELUS Mobility, the Licensee and any other
Licensees,and adjustments of the amount payable of those costs by the Licensee and any other Licensees shall be
made from time to time on notice to the Licensee and other Licensees. Such adjustment shall take effect at the
beginning of any contract year with retroactive adjustments as may be required.Any decrease in general operating,
maintenance or repair costs shall not be apportioned and adjusted as between TELUS Mobility and the Licensee.
8. In the event that the replacement or modification of all or part of the TELUS Mobility Equipment becomes
necessary in order for the Premises to comply with a statute,regulation or standard coming into effect after the
date of this Agreement,the Licensee shall pay to TELUS Mobility after written notification by TELUS Mobility
to the Licensee,its portion of the cost of such necessary work,as reasonably determined by TELUS Mobility,or,
at the Licensee's option it may terminate this Agreement upon twelve(12)months prior written notice to TELUS
Mobility.
Initials:
Licensor Site Name:Hwy 115/Hwy 9 Licensee Site Name:
Licensor Location Code:ON0908 Licensee Site Number:
CONFIDENTIAL INFORMATION
9. The Licensee agrees that all information relating to the Tower and the TELUS Mobility Equipment is confidential
and proprietary to TELUS Mobility,and unless required by any governmental authority,regulatory body or stock
exchange, or by law, the Licensee will not use, sell or disclose to any other person such confidential and
proprietary information. The Licensee will take all reasonable steps to hold all such confidential and proprietary
information and the terms and conditions of this Agreement in the strictest confidence.
10. The Licensee agrees that all information relating to this Agreement shall be maintained in strict confidence by the
Licensee and unless required to be disclosed by any governmental authority,regulatory body or stock exchange,or
by law, and then shall only be disclosed to such extent as is required, and the Licensee will not disclose to any
other person,other than its affiliates or associates(as those terms are defined in the Canada Business Corporations
Act),the terms and conditions of this Agreement.
EQUIPMENT AND USE OF SPACE
11. The Licensee agrees to use and occupy the Licensee Space only for the purpose of the installation, maintenance,
operation or removal of the Licensee Equipment;said use is limited to the frequencies specified in this Agreement.
The Licensee will not install or place any equipment or any other property in or at the Licensee Space other than
the Licensee Equipment.Any additional use by the Licensee under this Agreement is prohibited without the prior
written approval and consent of TELUS Mobility, such consent may be unreasonably withheld or delayed. If a
change in use is approved, this Agreement shall be amended to set out the additional equipment and/or
frequency(s)and a corresponding adjustment to the License Fee.
12. The Licensee Equipment shall be and remain the property of the Licensee during the Term, notwithstanding that
some or all of the Licensee Equipment may be affixed to the Licensee Space. Any injury or damage to the
Building,the Tower,the Premises or any equipment or property of TELUS Mobility,any other Licensee,user or
tenant of the Premises, caused by the Licensee, its contractors or agents when installing, inspecting, operating,
maintaining,or removing any Licensee Equipment,or otherwise caused by the Licensee, shall be repaired by the
Licensee, at its own expense within or on the Building or repaired by TELUS Mobility, or its contractors if
otherwise on the Premises or Tower, at the Licensee's expense. TELUS Mobility or its contractors may elect
without notice to the Licensee to repair any damage or injury within or on the Building caused by the Licensee if
such repair in the opinion of TELUS Mobility has not been completed by the Licensee within 7 days of the
damage or injury. Notwithstanding the foregoing,should, in the sole opinion of TELUS Mobility,any damage or
injury within or on the Building caused by the Licensee cause a potential safety concern,TELUS Mobility or its
contractors may without notice to the Licensee,repair the damage or injury. Any expenses incurred by TELUS
Mobility shall immediately be payable by the Licensee together with an administration charge of fifteen per cent
(15%)of the amount payable.
13. The Licensee will use all reasonable efforts to minimize any inconvenience or disruption to the owners or
occupants of the Premises,TELUS Mobility or any other Licensee,user or tenant of the Premises with respect to
the Licensee's use and occupation of the Licensee Space,and it will carry out all work at the Premises in a good
and workmanlike manner.
14. TELUS Mobility shall be permitted at any time without the consent of the Licensee to make any changes to the
Premises, which require the reconfiguration, relocation and/or multiplexing of the Licensee's antenna(s) and/or
equipment,whether in whole or in part.The Licensee shall co-operate and comply with these requirements and on
the dates TELUS Mobility may stipulate. In the event that the Licensee does not want to relocate, the Licensee
may terminate this agreement by notice in writing to TELUS Mobility without further liability by either TELUS
Mobility or the Licensee to the other. Such termination shall be effective 30 days from the date of the notice in
writing and the Licensee shall pay all License Fees and other expenses up to that date. If in the sole opinion of
TELUS Mobility, the reconfiguration, relocation, or multiplexing occurs solely for the benefit of TELUS
Mobility,TELUS Mobility shall bear the costs;if however,in the sole opinion of TELUS Mobility,the Licensee
derives some benefit from the proposed changes, such as new equipment, its financial participation shall be
negotiated. If however, in the sole opinion of TELUS Mobility, the reconfiguration, relocation or multiplexing
occurs for the benefit of a new third-party user, such new user shall bear the costs of the changes. In any such
request for reconfiguration,relocation or multiplexing,the requesting party shall ensure that the licensed coverage
of the Licensee shall not be materially affected.
RULES,REGULATIONS AND ACCESS
15. TELUS Mobility is not and will not be under any obligation to repair or improve access or to clear the Premises of
snow or other obstruction, beyond TELUS Mobility's own requirements. The aforesaid right of access shall be
exercised at the sole risk of the Licensee,TELUS Mobility bearing no responsibility or liability for loss or damage
to persons or property of the Licensee.
16. The Licensee shall comply with the rules and regulations to govern access and use of the Premises as set out in
Schedule"C"attached hereto and as may be amended by TELUS Mobility from time to time.
17. TELUS Mobility shall provide access to,and shall permit the Licensee,its employees and its authorized agents or
contractors, to enter the Licensee Space in the Building in order to install, inspect, maintain or remove the
Licensee Equipment,provided however that TELUS Mobility may,on 30 days notice to the Licensee, impose a
requirement that all such access following the date of the notice will only be granted to the Licensee when
escorted by TELUS Mobility, and the cost of the escort shall be paid by the Licensee within ten (10) days of
receipt of an invoice from TELUS Mobility for such cost or as set out in Schedule"C"attached hereto.
18. The Licensee shall not have access to or on the Tower. The installation, inspection, maintenance, or removal of
any Licensee Equipment on the Tower may only be performed by TELUS Mobility, its agents, or approved
contractor(s)at the request of the Licensee. The Licensee is responsible for, and shall pay TELUS Mobility for,
any costs or expenses incurred by TELUS Mobility in relation to any such request by the Licensee and any work
done by TELUS Mobility or its agents pursuant to any such request,within ten(10)days of receipt of an invoice
from TELUS Mobility for such costs or expenses together with an administration charge of fifteen per cent(15%)
of the amount payable.
Initials:
CD
Licensor Site Name:Hwy 115/Hwy 9 Licensee Site Name:
Licensor Location Code:ON0908 Licensee Site Number:
OBLIGATIONS OF THE LICENSEE
19. The Licensee shall bear all costs related to its installations and use of the Premises including the required tower
load analysis. Copies of the tower load analysis shall be submitted by the Licensee to TELUS Mobility. In
particular, any modifications required by the Licensee's installations and/or use of the Premises shall be carved
out at the Licensee's expense in a manner acceptable to TELUS Mobility. Where TELUS Mobility incurs an
expense as a result of the installation,maintenance or testing of the Licensee's facilities,such expense shall be paid
by the Licensee to TELUS Mobility, together with an administration charge of fifteen per cent (15%) of the
amount payable.
20. The Licensee shall keep any property which it may have upon the Premises, including but not limited to its
antennas,transmission lines,equipment,equipment shelters and buildings,in a good and safe state of repair and in
a clean and orderly condition.
21. The Licensee shall not permit any lien to be filed against the Premises or any improvements thereon by reason of
work,labour, services or materials,supplied or claimed to have been supplied to the Licensee or anyone holding
any interest in any part of,through or under this License.
COMPLIANCE WITH LAW
22. Without limiting any other obligation of the Licensee,the Licensee shall:
(a) comply with all Environmental Laws (including, but not limited to, obtaining any required permits,
licenses,or similar authorizations)relating to the Premises or the use or occupation of the Premises by the
Licensee;
(b) promptly notify TELUS Mobility in writing of:
i) any charges laid by any governmental authority alleging violation of any Environmental Laws
including,but not limited to,spills or release of Hazardous Materials,relating to the operations at the
Premises or the Licensee Space of the Licensee or any person for whom it is in law responsible or
over whom the Licensee may reasonably be expected to exercise authority or control;and
ii) any notice by any governmental authority alleging or concerning violation of,or imposing
requirements or asserting responsibility under,any Environmental Laws;and
iii) any order made by any governmental authority against the Licensee;and
iv) any notice received by the Licensee from any other person concerning any release or alleged release
of any Hazardous Materials from the Premises;
(c) promptly notify the appropriate regulatory authorities if so required of any violation of any Environmental
Laws within the time requirements set out in such Environmental Laws;
(d) permit TELUS Mobility to enter, inspect and audit the Building, the Licensee Space and Licensee
Equipment and the operations conducted therein and conduct tests and environmental assessments;
(e) not cause or permit a spill or release of Hazardous Materials at or from the Premises and not cause or
permit the storage or disposal of any Hazardous Materials on the Premises without the prior written
approval of TELUS Mobility;
(f) not engage in or permit any activity at the Premises that may reasonably be anticipated to lead to a
violation of any Environmental Laws or the imposition or assertion of liability or responsibility under any
Environmental Laws;
(g) remediate any Environmental Condition at the Premises caused by the Licensee or any person for whom it
is in law responsible or over whom the Licensee may reasonably be expected to exercise authority or
control,in the manner,within the time frames and to the extent required by Environmental Laws;
(h) indemnify and save harmless TELUS Mobility from and against any claims, demands, actions, suits,
losses,costs,damages and expenses(including,without limitation,reasonable legal fees and disbursements
as between a solicitor and his or her own client) from or relating in any way to any Environmental
Condition on the Premises caused by the Licensee or any person for whom it is in law responsible or over
whom the Licensee may reasonably be expected to exercise authority or control.
The obligations of the Licensee pursuant to this paragraph shall survive the expiry,or early termination of this
Agreement. In this Agreement:
(i) "Hazardous Materials" means any hazardous substance or pollutant or contaminant, toxic or dangerous
waste, substance, chemical or material including, without limitation, gasoline, and other petroleum
products, asbestos and poly-chlorinated biphenyls and any substance or materials which falls within the
definition or any variation of those terms or terms of similar import under any Environmental Laws;
(j) "Environmental Laws" in this Agreement means any and all federal, provincial, municipal or other
governmental or regulatory statutes, bylaws, regulations and rules in effect relating to the environment,
occupational safety,health or transportation;
(k) "Environmental Condition"includes,but is not limited to the condition of the air,ground,groundwater and
soil and the presence of any contamination, substances, chemicals, metals, materials, hazardous or solid
wastes,sludges or oils.
Initials:
m
Licensor Site Name:Hwy 115/Hwy 9 Licensee Site Name:
Licensor Location Code:ON0908 Licensee Site Number:
INDEMNITIES
23. The Licensee will indemnify TELUS Mobility and those for whom it is responsible in law, from and against all
proceedings, damages, costs, claims and expenses arising from damages or injuries, including death, to any
tangible property or persons caused by or arising out of any breach of its obligations under this Agreement or any
tortious act or omission of the Licensee,whether in connection with its entry onto or its use and occupation of the
Licensee Space or in compliance with any of its covenants,and provided that the Licensee shall not be required to
indemnify TELUS Mobility and those for whom it is responsible in law to the extent such proceedings,damages,
costs,claims and expenses are caused by any tortious act of TELUS Mobility and those for whom it is responsible
in law. Costs will include,without limitation,legal fees and disbursements as between a solicitor and his or her
own client.
PROTECTION OF WORKERS
24. The Licensee expressly agrees that at the request of TELUS Mobility or any other Licensee of the Premises
expressed through TELUS Mobility, it shall forthwith comply with a request to turn off or reduce its transmitter
output power in the event that works of whatever nature must be carried out,and that such reduction in transmitter
power is necessary to allow the work to be performed safely. The Licensee expressly agrees to comply forthwith
with any reasonable request by TELUS Mobility to turn off or reduce its use of any other equipment at the
Premises which in TELUS Mobility's opinion could create a hazard or impediment to workers and/or work of
whatever nature that in TELUS Mobility's opinion must be carried out at the Premises. Should the Licensee fail to
comply with such request(s),or in case of emergency or hazard to person or property,TELUS Mobility may at its
discretion and without penalty or liability turn off or reduce such power and shall advise the Licensee of the action
taken.The conditions of this clause shall be governed by the requirements of Safety Code 6 issued by the Radio
Protection Bureau of Health and Welfare Canada in 1991,as may be amended from time to time.
25. The Licensee expressly agrees that the operation of Licensee's Equipment shall not cause unprotected persons
working in the proximity of the Premises to be exposed to non-ionizing radiation levels that exceed the non-
ionizing radiation levels permitted by Safety Code 6 issued by the Radio Protection Bureau of Health and Welfare
Canada in 1991 as may be amended from time to time.If at any time throughout the term of this Agreement or any
extension thereof, the operation of the Licensee's Equipment is found, in the reasonable opinion of TELUS
Mobility,to cause unprotected persons in the proximity of the tower to be exposed to the non-ionizing radiation
levels that exceed the non-ionizing radiation levels permitted by the said Safety Code, the Licensee shall take
immediate steps at its own expense to ensure that the requirements of the said Safety Code are met.
MUTUAL COVENANTS
26. The Licensee and TELUS Mobility shall cooperate with each other and with any and all other Licensees of the
Premises in testing and carrying out any modification that may be necessary to insure proper functioning of all
services using the Premises,and the covenant of the Licensee hereunder shall be deemed to enure not only to the
benefit of TELUS Mobility but also to the benefit of all other present and/or future Licensees of the Premises from
time to time.
28. If the Licensee's operations from the Tower are negatively affected by radio interference caused by other users of
the Premises, the Licensee may give notice of such interference to TELUS Mobility, and TELUS Mobility will
notify the users causing such interference and request that they cooperate to try to eliminate such interference. If
the problem is not rectified within seven(7)days from the giving of such notice,the Licensee,as its sole remedy
against TELUS Mobility, may terminate this Agreement at the end of the seven (7) day period. If, in the sole
opinion of TELUS Mobility,the operations of TELUS Mobility or any other users from the Tower are negatively
affected by radio interference caused by the Licensee, by the Licensee Equipment, or by any of the Licensee's
operations or activities at the Premises,TELUS Mobility may give notice of such interference to the Licensee and
if the problem is not rectified within seven (7) days from the giving of such notice, TELUS Mobility may
terminate this Agreement at the end of the seven (7) day period, and the Licensee shall not have any further
recourse as against TELUS Mobility.
29. In the event that any of the installations of the Licensee at the Premises including its antenna, equipment and/or
any modifications thereof from time to time, shall cause interference in any way with the facilities of any prior
licensee,TELUS Mobility,or both,the Licensee shall take steps at its own expense to eliminate such interference.
30. The exercise of this Agreement herein by the Licensee and all installations effected by the Licensee shall be at the
sole and exclusive risk of the Licensee.TELUS Mobility shall not be liable to the Licensee for any loss,damages,
costs and/or disbursements relating to property or trade of the Licensee save in the event that loss,damage, cost
and/or disbursement is directly caused by the gross negligence of TELUS Mobility, its officers, employees or
agents.
TELUS MOBILITY COVENANTS
31. Subject to the performance by the Licensee of all of its obligations hereunder and the provisions of this
Agreement,TELUS Mobility shall keep the Tower in a reasonable state of repair. TELUS Mobility shall also pay
any property taxes, local improvement charges and any other rates, duties, levies and assessments levied or
assessed against the Premises except those required to be paid by the Licensee pursuant to the provisions of this
Agreement.
32. TELUS Mobility agrees to pay the rent and any other fees reserved by the Head Lease and to perform and observe
the covenants on its part contained in the Head Lease with respect to the Premises.
COMPLIANCE WITH LAW
33. The Licensee shall comply with all laws,ordinances,rules,regulations and codes relating to its use and occupation
of the Licensee Space,and to the operation and maintenance of the Licensee Equipment,and without limiting the
generality of the foregoing,the Licensee shall comply with all federal,provincial and local legislation relating to
Initials:
Licensor Site Name:'Hwy 115/Hwy 9 Licensee Site Name:
Licensor Location Code:ON0908 Licensee Site Number:
health and safety, insofar as it applies to its use and occupation of the Licensee Space or to the Licensee
Equipment. The Licensee shall give all necessary notices and obtain and pay for any consents,permits or licenses
necessary for the operation of the Licensee Equipment and Building(if applicable) at the Premises.
34. TELUS Mobility shall obtain and pay for any consents, permits or licenses necessary for the operation of the
Tower and TELUS Mobility'Equipment at the Premises.
INSURANCE
35. The Licensee shall,without limiting its obligations or liabilities under this Agreement,at its own expense,obtain
and maintain comprehensive general liability insurance in an amount not less than five million dollars
($5,000,000.00) inclusive per occurrence against liability for bodily injury, personal injury, death and property
damage,including loss of use by the party sustaining the damage,relating to the Licensee's use and occupation of
the Licensee Space,with a waiver of subrogation against TELUS Mobility.
INTERPRETATION
36. Save and except the obligation of the Licensee to pay,failure by either party to perform or observe any covenant,
undertaking, obligation or condition herein stipulated on such party's part to be performed or observed shall not
give the other party any claim against such party, or be deemed a breach of this license, insofar as such failure
arises from force majeure. "Force majeure"refers to any act of God; inevitable accident; fire; lockout, strike or
other labour dispute; riot or civil commotion; political controversy; act of public enemy; law enactment,
regulation, rule, order or act of government or governmental instrumentality(whether federal, provincial, local,
foreign or other);failure of technical facilities;or other cause of a similar or different nature beyond the Licensee's
or TELUS Mobility's control or that of any major supplier of facilities or services to either party.
DESTRUCTION
37. If the Tower is destroyed during the Term by fire or other causes so as to be a total loss,the License Fee is payable
up to the date of destruction of the Tower, and this Agreement shall immediately terminate without any further
liability by either TELUS Mobility or the Licensee to the other. If the Tower is only partially destroyed during
the Term by fire or other causes,then TELUS Mobility may,at its option,rebuild the Tower or otherwise make
them fit for the purposes of this Agreement,and the License Fee,or a portion of the License Fee depending on the
nature and extent of the damage to the the Tower and the extent to which the Licensee is able to occupy and use
the Licensee Space, shall abate from the date of such partial destruction until the Tower has been rebuilt or
otherwise made fit for the purposes of this Agreement. Alternatively, if the Tower is only partially destroyed
during the Term, TELUS Mobility may, at its option, terminate this Agreement by notice in writing to the
Licensee, without any further liability by either TELUS Mobility or the Licensee to the other. Such termination
shall be effective as of the date of such partial destruction,and the Licensee shall pay all fees due up to the date of
such partial destruction.
DEFAULT AND TERMINATION
38. Either party may terminate this Agreement prior to the expiration date by giving Ten (10) days notice to the
other party:
(a) if the other party is in breach of any term or condition of this Agreement, or any tangible property of the
party giving notice has been misused,damaged or destroyed by the other party or by anyone for whom it is
responsible in law,and the other party has failed to remedy the breach or repaired or replaced the property
prior to the end of the ten(10)day notice period;or
(b) if the other party becomes insolvent, ceases to do business as a going concern, is adjudged a bankrupt,
makes a general assignment for the benefit of creditors,if a receiver or receiver-manager is appointed for
the other party, or if the other party takes the benefit of any statute in force for the winding up or
liquidation of corporations.
39. If the Licensee fails to perform any of its covenants or obligations under this Agreement,TELUS Mobility may,in
its discretion,after giving the Licensee ten(10)days notice to do so(except in emergency circumstances when the
giving of notice would be unreasonable,in which case TELUS Mobility is only required to give reasonable notice,
if any), perform or cause to be performed any such covenants or obligations, or any part thereof and for such
purpose may do such things as may be needed,including without limiting the generality of the foregoing,entering
the Licensee Space,and all expenses incurred by or on behalf of TELUS Mobility in doing so shall be paid by the
Licensee within ten(10)days of receipt of an invoice from TELUS Mobility for such expenses,together with an
administration charge of fifteen per cent(15%)of the amount payable.
40. TELUS Mobility may at its option and without any further liability to the Licensee terminate this Agreement at
any time prior to the expiration date by giving sixty(60)days notice of termination for any reason whatsoever.
41. In the event that the Head Agreement is completely or partially terminated through no fault of the Licensor, this
agreement as it affects such portion shall be terminated or at the option of the Licensee,shall be terminated in its
entirety.
42. In the event that any right to operate the Site is canceled or is terminated by any governmental authority, either
party may terminate this agreement upon 30 days'notice.
43. In the event of termination prior to the end of the Term,TELUS Mobility shall refund to the Licensee any fees
paid in advance by the Licensee for any period of time subsequent to the effective date of termination. Within 30
days following the expiration or termination of this Agreement,the Licensee is entitled to and shall dismantle and
remove the Licensee Equipment and any other property of the Licensee from the Building and the Premises,at its
own expense. Without limiting the generality of the foregoing,the Licensee shall,if required by TELUS Mobility,
be required to remove from the Premises, within a reasonable period of time following the expiration or
termination of this Agreement,any Licensee Equipment that has been placed and buried below the surface of the
Premises,and shall be required to restore any disturbance to the surface of the Premises as a result thereof. Upon
Initials:
W
Licensor Site Name:Hwy 115/Hwy 9 Licensee Site Name:
Licensor Location Code:ON0908 Licensee Site Number:
the expiration or termination of this Agreement, TELUS Mobility or its agents will dismantle and remove any
Licensee Equipment from the Tower,at the Licensee's expense,and the Licensee agrees to pay TELUS Mobility,
as provided for in this Agreement, for any costs or expenses incurred by TELUS Mobility in relation to the
removal of the Licensee Equipment from the Tower, together with an administration charge of fifteen per cent
(15%)of the amount payable.
44. In the event that during the period in which this Agreement is in force,TELUS Mobility ceases its own operations
or in the opinion of TELUS Mobility, the tower becomes unsafe or unsound at the Premises, TELUS Mobility
may terminate this Agreement on one hundred and twenty(120)days prior written notice to the Licensee.
HOLDING OVER
45. If, at the expiration or termination of this Agreement, the Licensee remains in possession of the Licensee Space
without any further written agreement,no extension of the Term or any new Term shall be created by implication
of law or otherwise,except that the Licensee shall be permitted to remain in possession of the Licensee Space for a
monthly fee equal to One Hundred Fifty (150%) percent of the monthly fee payable immediately before
termination or expiration (pro rated where the License Fee was payable annually or quarterly) and otherwise on
the same terms and conditions set out in this Agreement,except that either party may terminate the Agreement or
the Licensee's right to remain in possession by giving thirty(30)days notice of termination to the other party.
LIMIT ON LIABILITY AND OBLIGATIONS
46. Under no circumstances will TELUS Mobility be liable for any special, indirect, incidental or consequential
damages including, without limitation, business or economic loss or loss of anticipated profits under or in
connection with any provision of this Agreement,including without limitation any breach of any term or condition
or a fundamental breach of this Agreement,even if TELUS Mobility has been advised of the possibility of such
damages.
47. If TELUS Mobility is unable to fulfill or is delayed or restricted in the fulfillment of any obligation in respect of
the supply or provision of any service or utility or the doing of any work or the making of any repairs by reason of
being unable to obtain the material,goods,equipment,service,utility or labour required to enable it to fulfill such
obligation,or by reason of any statute,law or order in council,or any regulation or order passed or made pursuant
thereto or by reason of the order or direction of any administration, controller or board, or any government
department or officer or other authority,by reason of not being able to obtain any permission or authority required
thereby, or by reason of any other cause beyond its control whether of the foregoing character or not, TELUS
Mobility shall be relieved from the fulfillment of such obligation and the Licensee shall not be entitled to
compensation for any inconvenience, economic losses or nuisance thereby occasioned. If TELUS Mobility is
unable to obtain the material as herein before provided,but the Licensee can provide the required material without
infringing on any governmental regulations,TELUS Mobility shall avail itself of such material in order to do any
work or make any repairs as required in this Agreement. The Licensee agrees that TELUS Mobility has no
obligation or responsibility to provide emergency or back-up power to the Licensee, and the Licensee
acknowledges that the provision of any emergency or back-up power is the sole responsibility of the Licensee.
OTHER USERS
48. The Licensee acknowledges that TELUS Mobility and other persons will use the Tower for their respective
operations,and that TELUS Mobility shall license portion(s)of the Premises and the Tower to other parties.
GENERAL
49. The Licensee shall not register any caveat,notice,or interest against the Premises in respect of its interest under
this Agreement.
50. Any notice required pursuant to this Agreement shall be in writing and shall be deemed to have been received on
the date when delivered or sent by confirmed facsimile transmission,or five(5)days after being sent by registered
mail to the addresses set out below each party's signature to this Agreement,or to such other address as the parties
may from time to time advise each other by notice.
51. The parties are independent contractors. Nothing in this Agreement shall be construed so as to create a partnership
or joint venture or relationship of franchisor and franchisee. Neither party shall be liable for the debts or
obligations of the other party. Neither party shall be an agent of the other for any purpose, and neither party has
any right or authority to assume or create any obligations,express or implied,on behalf of or in the name of the
other or to bind the other in any manner whatsoever.
52. The Licensee shall not assign this Agreement or sublet,sublicense,grant a concession or part with possession of
the Licensee Space, or any part thereof, without first obtaining the written consent of TELUS Mobility, which
consent may be unreasonably withheld. Any purported assignment, subletting, granting of a sublicense or a
concession without such written consent shall,at the option of TELUS Mobility,result in the termination of this
Agreement. Any material change in management or control of the Licensee shall be deemed to be an assignment
requiring the prior written consent of TELUS Mobility. No such assignment, subletting, sublicensing or
concession will relieve the Licensee from performing the terms,covenants and conditions of this Agreement.
53. If TELUS Mobility sells or assigns its interest in the Premises or otherwise divests itself of its interests in the
Premises, it shall assign this Agreement to the purchaser or the assignee and shall be relieved of all obligations
under this Agreement after the effective date of any such sale or assignment. All of the terms and conditions of
this Agreement shall remain in full force and effect and any obligation of TELUS Mobility under this Agreement
shall be assumed by the purchaser or assignee.
54. Failure by either party to enforce or insist upon compliance with any of the terms and conditions of this
Agreement shall not constitute a waiver or relinquishment of such terms or conditions,all of which shall remain in
full force and effect. No provision of this Agreement shall be deemed to be waived unless such waiver is in
writing.
Initials:
Licensor Site Name:Hwy 115/Hwy 9 Licensee Site Name:
Licensor Location Code:ON0908 Licensee Site Number:
55. If any provision of this Agreement is invalid or unenforceable in any circumstances, the remainder of this
Agreement and the application of such provision in any other circumstances shall not be affected.
56. This Agreement shall be governed by and interpreted in accordance with the laws prevailing in the Province of
Ontario and the laws of Canada applicable in the Province of Ontario.
57. This Agreement, including the attached schedule,constitutes the entire agreement between the parties relating to
the subject matter, and supersedes all prior agreements, understanding, negotiations, representations and
discussions, whether oral or written. Any amendments to this Agreement must be in writing and signed by the
parties. The headings contained in this Agreement are for convenience of reference only and shall not affect the
interpretation or meaning of this Agreement.
58. This Agreement shall enure to the benefit of and be binding upon the respective successors and permitted assigns
of each party.
Initials:
Licensor Site Name:Hwy 115/Hwy 9 Licensee Site Name:
Licensor Location Code:ON0908 Licensee Site Number:
SCHEDULE"A"
Legal description of the Premises:
Part of Lot 17,Concession 6
Twp of Clarke
Municipality of Clarington
Regional Municipality of Durham
Designated as Part 1 on Plan 40R-17661
Initials:
Licensor Site Name:Hwy 115/Hwy 9 Licensee Site Name:
Licensor Location Code:ON0908 Licensee Site Number:
SCHEDULE"B"
At the Premises the Licensee is permitted to:
a. Install:
• one (1) DB809K-XT antenna at the 37.5 m (123 ft.) level of TELUS Mobility's
tower,as shown on Schedule"E"as attached hereto.
b. Occupy:
• space within TELUS Mobility's compound to install and operate one (1) shelter
measuring 10'8"X 10'8" or approximately 114 ftz, as shown on Schedule"D",
attached hereto.
c. Operate its emergency communications system on the following frequencies:
Transmit: 857.13750 Receive: 812.13750
857.38750 812.38750
859.33750 814.33750
866.30000 821.30000
866.80000 821.80000
866.05000 821.05000
866.55000 821.55000
867.30000 822.30000
867.80000 822.80000
Initials:
Licensor Site Name:Hwy 115/Hwy 9 Licensee Site Name:
Licensor Location Code:ON0908 Licensee Site Number:
SCHEDULE"C"
Rules for Accessing and Use of TELUS Mobility Sites and Facilities.
1. TELUS Mobility must be notified by telephone at least one hour in advance of any
personnel accessing the Premises by calling 1 (800) 391-1391. Failure to do so may result
in the loss of unescorted access privileges.
2. If the Licensee accessing the Premises fmds an open compound gate, that person should
immediately call the TELUS Mobility NMC at 1(800) 391-1391 (press `3') to have the on
call technician paged so that the situation may be reported and handled. Prior to leaving the
site the personnel will ensure that all gates are securely locked.
3. If a TELUS Mobility employee is required to attend the Premises on behalf of the Licensee,
the employee's time will be charged back to the Licensee at $75.00/hour plus any
additional costs to TELUS Mobility including but not limited to overtime, per diem, and
miscellaneous expenses. This rate is subject to periodic review and adjustment by TELUS
Mobility.
4. The Licensee is responsible for the proper care of any keys or access codes provided by
TELUS Mobility. In the event a key is lost, or an access code is divulged to a third party,
the Licensee will be responsible for the cost of re-keying the entire Premises.
5. At no time will the Licensee perform any work in the Premises that may affect the
continuing normal operation of TELUS Mobility's equipment without TELUS Mobility's
express written consent. TELUS Mobility may require the assigned RF Specialist to be on
site for any work that may affect the operation of TELUS Mobility's equipment. At least
forty-eight (48) hours advance notice is required of any work in the Premises is required,
once consent has been given.
6. All equipment installed on the Premises by the Licensee must be clearly labeled for easy
identification.
7. Any batteries installed at the site must be installed in R.V. sleeves to prevent the accidental
spilling of corrosive components.
Initials:
Rev.1 Description iDwnlChkVppl Date
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Drown By. Checked BY MDroved By.
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Sky-rd Jab No.: Date: R-
2548 23 AUG 02 1 0
Drawing No.:
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'• - Rev.1 Description Dwn Chk p Dote
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1— DESIGNED TO CSA—S37-94
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t' (6) D8874 C/w (6) LDF7-50A ® 230FT (ULTIMATE) 3- ULTIMATE LOADING SHOWN ON TOWER
225.0'I
NOTE
PROFILE (ALL LOADS UNFACTORED)
4- TWIST AND TILT <0.5' AT MICROWAVE DISH LOCATIONS
ELEV. 210 FT 13' T.R. ® 210' 5- ALL STEEL TO G40.21 300W, HOP DIP GALVANIZED
205.0'
6— FACE WIDTH = 52" GAUGE TO GAUGE
^u u 7— INSIDE LADDER c/w SAFETY RAIL
2 (2) 8FT HP ® 197FT c/w (2) EWP132 (ULTIMATE) 8— 30"TX—LINE HANGER SPACING
z 1as.o'I 9— LEG SUPPORTED ® 40"c/c (BRACING
_ (6) LPD7907-4 ® 184FT c/w (6) LDF7-50A PATTERN AS SHOWN)
ELMOBILITY (4 EXISTING, 2 FUTURE)
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�z Towess/no.
y O W ELEV. 70.0 FT 200 Webster Road
(2) 5/8"0 G.S. Kitchen* 2E6 r.Ontario
65.0' Pult.=40k LT.= 4.Ok N2C Phone:519-748-2460
3o W
'r" V 1-: 519-748-2138
0 (1) 5/8"0 B.S. Copyr[W—dupliaalion,recorderg,d'a iamwa,and um is
A 45.0' Pult.=48k LT= 4.8k P-16 d eRnaut the-M.cal-at or WMARD lowers Hc.
Up
Drawing Reference:
N 25.0'
v ? 411.6k
ELEV, 0 FT
2.8k Drawing Title
s1.ek— TOWER PROFILE
N ° N 147.5k R=16sFr CO-LOCATE ON
= o �
EXISTING TOWER
KIRBY, ONTARIO
230F7 KDG TOWER PROFILE MOTOROLA
yDrown By: Checked By. Approved By:
L i M.R.
Skyward Job No.: Date: Rev:
f"1
QI 2548 23 AUG 02 O
Drawing No.:
668_2548_001TP_E01
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