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2003-099 To authorize the execution of a Municipal Access Agreement between the Township of Oro-Medonte and SCBN Telecommunications Inc. THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE . BY-LAW NO. 2003-099 BEING A BY-LAW TO AUTHORIZE THE EXECUTION OF A MUNICIPAL ACCESS AGREEMENT BETWEEN THE TOWNSHIP OF ORO-MEDONTE AND SCBN TELECOMMUNICATIONS INC. WHEREAS the Municipal Act, S.O. 2001, c.25, Section 391, provides the authority for a municipality to impose fees or charges for the use of its property; AND WHEREAS the Council of the Township of Oro-Medonte deems it desirable to enter into an agreement with SCBN Telecommunications Inc. to grant SCBN a licence to install fibre optic for the delivery of an overall Simcoe Community Access Network; . AND WHEREAS, SCBN covenants and agrees to pay to the Municipality all application fees imposed by the Municipality from time to time for the examination and approval of plans and drawings, including fees and charges for the use of municipal property as well as legal fees incurred by the Municipality in connection with the preparation of said agreement; NOW THEREFORE the Council of The Corporation of the Township of Oro-Medonte enacts as follows: 1. That a Municipal Access Agreement be entered into in accordance with the words and terms set out in the agreement attached hereto as Schedule '1', and forming part of this bylaw; 2. That the Mayor and Clerk are hereby authorized to execute the said Municipal Access Agreement on behalf of the Corporation and affix thereto the Corporate Seal. 3. That this By-law shall come into force and take effect on the final passing thereof. . BY-LAW READ A FIRST AND SECOND TIME THIS 1ST DAY OF OCTOBER, 2003. BY-LAW READ A THIRD AND FINAL TIME THIS 1ST DAY OF OCTOBER, 2003. THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE .~ . t . - . MUMCWALACCESSAGREEMENT BETWEEN THE CORPORA TION OF THE TOWNSHIP OF ORO- MEDONTE AND SCBN TELECOMMUNICA TIONS INC. . Prepared by: GRAHAM, WILSON AND GREEN Barristers and Solicitors 190 Cundles Road East Suite 107, P.O. Box 987 Barrie, Ontario, L4M 5E1 Mary E. Vallee (705) 737-1811 - phone (705) 737-5390 - fax e1 I , .? TABLE OF CONTENTS . PAGE NO. Definitions 2 Relationship of Parties 3 Right to Occupy 4 Installation of Equipment, Remediation and Relocation 4 Indemnification and Insurance 9 Liability 10 Payment of Fees 11 Dispute Resolution 11 . Non-Use of Equipment 11 Default 11 Non-Fulfillment of Obligation 12 No Ownership or Property Rights 13 Workers' Compensation Coverage 13 Hazardous Substances 13 Notices 14 Assignment 14 Entire Agreement 15 . Time 15 Waiver 15 Singular/Plural 16 , . . . . , , Applicable Law 16 Appendix "A" - Design Guidelines for Utility Street Furniture 17 Appendix "B" - Procedures for Third Party Claims 19 Appendix "C" - Arbitration Procedures 21 Schedule "A" - Description of Lands 22 . . . -' MUNICIPAL ACCESS AGREEMENT THIS AGREEMENT made this l.'>! day of <::'\c\o\:' (~r ,2003. BET WEE N: THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE (hereinafter referred to as "the Municipality") -and- SCBN TELECOMMUNICATIONS INC. (hereinafter referred to as "SCBN") (Collectively referred to as "the Parties" to this Agreement) WHEREAS: 1. The Municipality is the owner of certain lands (the "SeNice Corridor") more particularly described in Schedule "A" previously owned by Canadian National Railway and used for the purpose of a railway, which lands are not a public highway; 2. SCBN is a licensed Service Provider which carries on a telecommunications business through its facilities in certain areas including all or a portion of the land within the boundaries of the Municipality; 3. SCBN wishes to install and maintain wires, fibre-optic cables, ducts, conduits, manholes and other accessories, structures and equipment (collectively, the "Equipment") in connection with the provision of telecommunications in, on, under, over, along and across the SeNice Corridor within the Municipality; 4. Council of the Corporation of the Township of Oro-Medonte has enacted a By-law to authorize and regulate the construction and maintenance of poles, towers, wires, cables, amplifiers and other accessory equipment of the construction, laying down of pipes, ducts and conduits for enclosing wires, cables, amplifiers and other accessory equipment on, across or along the SeNice Corridor for the purpose of transmitting electrical or electric impulses, signals and messages of any nature and kind, which bylaw is continued by virtue of sections 8, 9, 10 and 11 of the Municipal Act, 2001. . . . , . 2 5. Council of the Municipality has enacted a By-law pursuant to Section 391 of the Municipal Act, 2001 imposing fees or charges for the above- noted use of its property; 6. Pursuant to the By-law noted above, the within Agreement is required to be entered into by the Municipality and by SCBN to grant SCBN a licence to install fibre optic for the delivery of an overall Simcoe Community Access Network (hereinafter referred to as the "SCAN") across the Service Corridor; 7. The Municipality is prepared to enter into an agreement to permit use by SCBN of the Service Corridor upon the terms and conditions hereinafter set forth; and 8. SCBN agrees to pay the Municipality $15,000.00 (Fifteen Thousand Dollars) on or before the date of execution of this Agreement, for the use of the Service Corridor, NOW THEREFORE in consideration of the promises and the mutual covenants and agreements herein set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by SCBN and the Municipality, SCBN and the Municipality hereby covenant and agree as follows: DEFINITIONS 1. In this Agreement, (a) "Affiliate" has the meaning ascribed thereto in the Business Corporations Act (Ontario); (b) "Business Day" means a day other than a Saturday, Sunday, statutory holiday in Ontario or any other day on which the principal chartered banks located in the Township of Oro- Medonte are not open for business during normal banking hours; (c) "Director of Engineering and Environmental Services" means the Director of Engineering and Environmental Services for the Municipality and shall include the designate of the Director of Engineering and Environmental Services; (d) "CRTC" means the Canadian Radio-Television and Telecommunications Commission and any successor or other governmental regulatory authority in respect of the telecommunications industry in Canada; . . . .. 3 (e) "Hazardous Substances" means any hazardous substance and includes but is not limited to electromagnetic or other radiation, petroleum products and by-products, industrial wastes, contaminants, pollutants, dangerous substances, and toxic substances, as defined in or pursuant to any law, ordinance, rule, regulation, by-law or code, whether federal, provincial or municipal; (f) "Other Municipally Owned Property" means all property, other than the Service Corridor owned by the Municipality, over which SCBN has an easement; (g) "Proposed Service Corridors" means streets, road allowances, lanes, bridges and viaducts in proposed subdivisions within the Municipality which have not been assumed by the Municipality; (h) "Qualified" means the worker or workers in question are duly qualified under applicable law (including the requirements of the Occupational Health & Safety Act, construction projects - O.Reg. 213/91 with respect to working near electrical hazards) or the entity uses only such qualified workers to carry out the work in question, as applicable; (i) "Service Provider" means a "Canadian carrier" as defined in subsection 2(1) of the Telecommunications Act (Canada), or a "distribution undertaking" as defined in subsection 2(1) of the Broadcasting Act (Canada); and (j) 'Taxes" means all taxes, duties, levies, assessments, rates, fees or charges of any kind whatsoever, imposed, levied, assessed or charged now or in the future by any government authority (save and except for the Municipality), and any payments that are levied in substitution or in lieu or in addition to any of the foregoing. RELATIONSHIP OF PARTIES 2. The relationship of SCBN and the Municipality established by this Agreement is that of independent contractors and nothing contained in this Agreement shall be construed: (a) to give either party the power to direct or control the day-to-day activities of the other; . . . , . 4 (b) to constitute the Parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking; or (c) to allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. RIGHT TO OCCUpy 3. The Municipality hereby consents and grants a non-exclusive right to SCBN to occupy and use the Service Corridor as specified and approved by the Director of Engineering and Environmental Services as to location and depth for the purpose of installing, maintaining and removing the Equipment for use only in the provision of SCAN telecommunications service subject to the terms and conditions hereinafter set forth. INSTALLATION OF EQUIPMENT, REMEDIATION AND RELOCATION 4. SCBN shall not install any of its Equipment in, on, under, over, along or across the Service Corridor without firstly obtaining the written approval of the Director of Engineering and Environmental Services with regard to the proposed location of the Equipment and without secondly providing plans and such other information as required by the Director of Engineering and Environmental Services setting out the location of the Equipment. 5. Prior to commencing work of any kind on a Service Corridor, including the installation, maintenance, relocation and removal of its Equipment, SCBN shall obtain all permits or permissions required by the Municipality. The Director of Engineering and Environmental Services may establish the terms and conditions under which SCBN may conduct the work. As a condition of such approval, the Municipality may, at its sole discretion, require SCBN to submit detailed engineering plans to the Director of Engineering and Environmental Services or his designate with respect to the work to be conducted on the Service Corridor. 6. Despite Section 5, SCBN may carry out routine above ground installation, maintenance, field-testing and subscriber connections without the consent of the Municipality. 7. SCBN covenants and agrees that all work conducted by SCBN on the Service Corridor, including installation, maintenance and removal of its Equipment, is subject to the following conditions: (a) all work shall be conducted and completed in accordance with the approved engineering plans to the satisfaction of the Director of Engineering and Environmental Services or his designate; , . 5 (b) SCBN is responsible for all installation, maintenance, repair and . removal of the Equipment including the cost of such work in accordance with good engineering practices; (c) all work shall be completed within a reasonable time after the receipt of all necessary approvals pursuant to this Agreement including but not limited to road occupancy permits. In any event, all clean-up, repair and restoration work shall be completed no later than 20 days after the completion of the work within the Service Corridor; (d) the portions of the Equipment which cross beneath the road surface or pass over or under existing utilities shall be placed in a carrier pipe or encased in concrete; (e) if SCBN breaks the surface of the Service Corridor, it shall temporarily reinstate all surface elements such as asphalt or granular as approved by the Director of Engineering and Environmental Services. All landscape elements including trees, . shrubs, grass and recreational trails are to be restored to substantially the same condition as they were in before SCBN undertook such work. Without limiting the generality of the foregoing, SCBN will perform permanent restoration of the surface elements. All costs of reinstatement are to be borne by SCBN, including but not limited to any damage to support structures, transmission lines, equipment, facilities and improvements of any kind as a result of SCBN's work; (f) in the event any trees suffer irreparable damage as a result of SCBN's work, SCBN shall compensate the Municipality for the value of the trees as determined by the Director of Engineering and Environmental Services or his designate; (g) if the Municipality requires the installation, maintenance or removal of the Equipment to be stopped for any engineering or safety reason, SCBN shall cease all such work upon receipt of notice from the Municipality; . (h) where weather conditions prevent clean-up, repair or restoration in accordance with Clause 7(c) or 7(e), SCBN shall effect a temporary repair and restore to the satisfaction of the Director of Engineering and Environmental Services. Clean-up, repair and restoration pursuant to Clause 7(c) or 7(e) shall be effected as soon as weather conditions permit; . . . , . 6 (i) if any clean-up, repair or remediation required herein is not completed by SCBN within twenty (20) days of its being notified by the Municipality, the Municipality may effect such clean-up, repair or remediation and charge all costs related thereto to SCBN; (j) all work shall conform to applicable rules and regulations including but not limited to the provisions of this Agreement; (k) the diameter of any aerial telecommunications cable (either a single cable or multiple lashed cables), which does not include underground cable, shall not exceed one and one-half inch (1-1/2") in diameter; and (I) no above-ground street furniture shall be permitted along the Service Corridor unless it is in conformity with the design guidelines attached as Appendix "A" and is authorized by the Director of Engineering and Environmental Services. 8. In performing any and all work in connection with this Agreement, SCBN shall ensure: (a) that its employees, contractors and subcontractors are Qualified, where necessary; (b) that safe working practices are used in carrying out the work; and, (c) that any and all of its employees, workers, agents, contractors and subcontractors and servants that carry out the work shall, at all times, comply with applicable health and safety laws. 9. SCBN represents, warrants, covenants and agrees with the Municipality that: (a) after completion of any work related to the installation, maintenance, repair, replacement or removal of the Equipment, SCBN shall leave the Service Corridor in a sanitary, neat, tidy and safe condition and free from nuisance and repair, all to the satisfaction of the Director of Engineering and Environmental Services; (b) SCBN shall not suffer or permit any lien to be filed or registered against the Service Corridor; (c) if this Agreement is terminated by either the Municipality or SCBN, all the unfulfilled covenants, indemnities and obligations of SCBN hereunder shall survive such termination; . . . " . 7 (d) the Municipality makes no representations or warranties as to the state of repair of the Service Corridor or the suitability of the Service Corridor for any business, activity or purpose whatsoever and SCBN hereby agrees to use the Service Corridor on an "as is" basis; (e) SCBN's occupancy and use of the Service Corridor shall not interfere with the public use and enjoyment of the Service Corridor; (f) SCBN shall notify the Municipality of any damage caused by SCBN in connection with its work, Equipment or enjoyment of its right to occupy and use the Service Corridor under this Agreement; and (g) The Municipality may cross SCBN's Equipment with its own improvements or otherwise and may use the Service Corridor for any purpose and may allow other parties to cross SCBN's Equipment with their improvements or otherwise and to use the Service Corridor, all at no charge to the Municipality, provided that all such crossings will comply with the Ontario Provincial Standards issued by the Ministry of Transportation (Ontario), the Canadian Standards Association (CSA) standards and the Municipality's own standards. (h) In the event that SCBN's Equipment or the equipment of a third party is damaged, whether directly or indirectly, as a result of SCBN's work on the Service Corridor, SCBN will be liable for the costs of replacement or repair of any Equipment of a third party which is damaged, and notwithstanding Clause 20(c) in respect to said damage, the Municipality and/or its insurer will have the right of subrogation against SCBN and/or its insurer. 10. SCBN shall advise the Director of Engineering and Environmental Services immediately upon the completion of any work contemplated by this Agreement and shall provide "as built" drawings to the Municipality in a form satisfactory to the Director of Engineering and Environmental Services within two months of completing the installation of any of the Equipment. 11. SCBN agrees to participate with the Municipality and other Service Providers in any centralized utility location notification procedures of the Municipality. , . . . . 8 12. SCBN further agrees to participate in any utility coordinating committees or forums as may be established by the Municipality. 13. SCBN shall use its best efforts to place its Equipment along routings previously assigned to Service Providers by the Municipality and in or along any support structures situated therein. 14. SCBN shall provide locations of its Equipment at no cost to the Municipality within three (3) hours of receiving an emergency request or within seven (7) calendar days of receiving a planned work request from the Municipality. 15. SCBN shall provide to the Director of Engineering and Environmental Services a list of 24-hour emergency contact personnel for SCBN and shall ensure that the list is always current. 16. Upon receipt of ninety (90) days notice from the Municipality, SCBN shall forthwith relocate its Equipment within the Service Corridor, or perform any other work in connection with the Service Corridor as may be required by the Municipality at its own expense, provided that in cases of emergency, the Municipality may take any measures deemed necessary for public safety with respect to the Equipment that may be required in the circumstances as the Municipality may determine and SCBN shall reimburse the Municipality for all expenses incurred. The relocation or removal shall be necessary only if so deemed necessary by the Municipality, including a situation where the Equipment interferes with the existing or future use of the Service Corridor by the Municipality for other services or other private utilities, including a Service Provider(s). Further, the Municipality shall make reasonable efforts to co-operate with SCBN in relocating SCBN's Equipment within the Service Corridor. In this paragraph, "other services" shall means the services of any municipal corporation including any statutory agent or local board and any federal or provincial government agency. 17. If SCBN fails to relocate its Equipment in accordance with paragraph 16 or fails to repair the Service Corridor or to do anything else required by SCBN pursuant to this Agreement to the satisfaction of the Director of Engineering and Environmental Services, upon notice to SCBN, the Municipality may complete such relocation or repair and SCBN shall pay the cost of such relocation or repair 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 at the rate of two percent (2%) per annum above the prime lending rate of the Canadian Imperial Bank of Commerce carrying on business in the Municipality shall . . . 9 be due and payable by SCBN to the Municipality within thirty (30) days of receipt by SCBN of an invoice setting out such costs and interest. 18. This Agreement shall be in effect for a term commencing upon the date of execution and shall continue until September 30, 2006 (the "Original Term") at which time the term shall be automatically renewed for a five year period commencing on October 1, 2006 (the "Renewal Term"). Upon the completion of the Renewal Term, the term hereof shall automatically been renewed for an additional five year period (the "Additional Term"); provided, however, that at least two years prior to the expiry of the Renewal Term, either party may give the other notice that it does not want the Renewal Term to be renewed for a further five year period. INDEMNIFICATION AND INSURANCE 19. (a) The Municipality shall indemnify, defend and save harmless SCBN, its officers, directors, representatives, employees and agents from all fines, suits, proceedings, liabilities, losses, damages, costs, expenses, claims, demands or actions of any nature or kind whatsoever caused directly or indirectly by the failure of the Municipality to perform its obligations under this Agreement and against any and all damages, costs, expenses and fees (including without limitation all legal expenses) incurred by or on behalf of any of the foregoing in the investigations or defense of any and all such suits, proceedings, claims, damages or actions. (b) SCBN shall indemnify, defend and save harmless the Municipality, its officers, directors, representatives, employees and agents from all fines, suits, proceedings, liabilities, losses, damages, costs, expenses, claims, demands or actions of any nature or kind whatsoever caused directly or indirectly or related to the installation, placement, maintenance and operation of SCBN's Equipment installed on, under, over, along and across the Service Corridor and the operation thereof which is the subject of this Agreement or the failure of SCBN to perform its obligations under this Agreement and against any and all damages, costs, expenses and fees (including without limitation all legal expenses) incurred by or on behalf of any of the foregoing in the investigation or defence of any and all such suits, proceedings, claims, damages or actions. 20. Notwithstanding any provision of this Agreement, neither party shall in any circumstances whatsoever be liable to the other party for incidental or consequential or punitive damages including, without limitation, loss of profit, sustained or claimed by the other party; provided, however, that nothing herein shall in any way limit the right of the party to be indemnified by the other party for a claim to the extent that such party is seeking . , . . . 10 indemnity for a third party claim for incidental or consequential or punitive damages including, without limitation, loss of profits. Any such third party claims shall be governed by the procedure set out in Appendix "B" hereto. 21. (a) Without restricting the generality of any indemnity provided, the Parties to this Agreement shall provide and maintain general liability insurance covering their operations which are the subject of this Agreement and protecting against all claims which might arise from their operations performed by their respective officers, employees and agents under this Agreement, including bodily injury (including sickness and disease, mental injury, mental anguish, shock and death), personal injury (including humiliation and harassment), broad form property damage (including loss of use thereof), products and completed operations, sudden and accidental time element pollution liability, non-owned automobile liability, blanket contractual liability, employee liability, cross liability and subject to limits of not less than five million dollars ($5,000,000) inclusive per occurrence. The insurance coverage set out above does not in any way alter or limit the liabilities assumed by the Parties under this Agreement. (b) The policies of liability insurance carried by the Municipality hereunder shall include SCBN as an additional insured. The policies of liability insurance carried by SCBN shall include the Municipality as an additional insured but only with respect to the Township's interest in the operations of the Company under this agreement. (c) It is acknowledged and agreed that so long as the Municipality is a public agency or is owned by a public agency, it may self-insure its operations in whole or in part. LIABILITY 22. (a) With respect to the assets and operations which are the subject of this Agreement, the Municipality shall be responsible for all environmental liability which results from: (i) the Municipality's operations; or (ii) any products, goods or materials brought to the Service Corridor or used by the Municipality or by a person with the express or implied consent of the Municipality. (b) With respect to SCBN's Equipment installed on the Service Corridor and its operation which is the subject of this Agreement, , , - .. 11 SCBN shall be responsible for all environmental liability which results from: (i) the installation, maintenance or operation of such Equipment; or (ii) any products, goods or materials brought to the Service Corridor or Other Municipally Owned Property or used by SCBN or by a person with the express or implied consent of SCBN. PAYMENT OF FEES 23. SCBN covenants and agrees to pay to the Municipality pursuant to the Municipality's User Fee Bylaw imposing fees or charges for the use of its property, all application fees imposed by the Municipality from time to time for the examination and approval of plans and drawings, including fees or charges for the use of municipal property. SCBN also covenants and agrees to pay the Municipality's legal fees in connection with the preparation of this Agreement. DISPUTE RESOLUTION 24. Any dispute, controversy or claim in connection with this Agreement or its performance, breach or validity shall be finally settled by arbitration in accordance with Appendix "C". NON-USE OF EQUIPMENT 25. SCBN shall notify the Municipality promptly when it ceases to use Equipment situated on the Service Corridor or Other Municipally Owned Property. Upon such notification, the Municipality may thereafter, at any time, require SCBN to remove the said Equipment within a specified period of time, being no less than ninety (90) days from the date of SCBN's notification, failing which the Equipment and any support structure containing only such obsolete Equipment shall be deemed to have been abandoned by SCBN and title thereto shall vest in the Municipality. DEFAULT 26. The Municipality and SCBN mutually agree that should SCBN fail to carry out any of the terms, covenants and conditions herein contained or default in any of its obligations under the terms hereof and fail to correct any such failure capable of correction within thirty (30) days after receiving written notice from the Municipality, this Agreement shall be null and void and of no effect and SCBN shall remove all of its Equipment from the Service Corridor, failing which all equipment shall become the property of the Municipality. , , - ; 12 27. SCBN agrees that the facilities, works and matters required by this Agreement shall be provided and maintained by SCBN at its sole risk and expense to the satisfaction of the Township. In addition, SCBN agrees that upon failure by it to do any act that is required by this Agreement within 90 days of receipt of written notice from the Municipality including but not limited to the payment of costs of repair or relocation pursuant to section 17, the Township may, in addition to any other remedy under this Agreement, or otherwise, (a) enter upon the land subject to this Agreement/Licence and do the said act at SCBN's expense, collect the cost in like-manner as municipal taxes, as provided for in Section 427 of the Municipal Act 2001, or, (b) require SCBN, and SCBN shall agree, to transfer ownership to the Municipality of SCBN's equipment located in the Service Corridor. NON-FULFILLMENT OF OBLIGATION 28. Should either party be unable to fulfill or be delayed or restricted in the fulfillment of any obligation (other than the payment of any money) under any provisions of this Agreement by reason of strike, lock-out, or other labour unrest, war or acts of military authority, rebellion or civil commotion, fire or explosion, flood, wind, water, earthquake, inclement weather, act of God or other casualty or by reason of being unable to obtain the material, goods, equipment, services, utility or labour required to enable it to fulfill such obligation or by reason of the order or direction of any court, administrator, controller or board, or any governmental department or officer or other authority, or by reason of any other cause beyond its control or not wholly or mainly within its control, whether of the foregoing character or not, and not caused by its default or its act of commission or omission and not avoidable by the exercise of reasonable effort or foresight by it so long as the impediment exists, such party shall be relieved from the fulfillment of the obligation and the other party shall not be entitled to compensation for any damage, inconvenience, nuisance or discomfort thereby occasioned. 29. If SCBN defaults in the payment of any fees or charges owed to the Township pursuant to this Agreement or by the By-law referred to in the recitals, or otherwise, or if the Township has incurred costs or expenses in enforcing the terms of this Agreement, the Township may, after 90 days written notice to SCBN, terminate this Agreement and all equipment and the right to use it within the Service Corridor becomes the property of the Municipality. , , - ; 13 NO OWNERSHIP OR PROPERTY RIGHTS 30. No use of the Service Corridor under this Agreement shall create or vest in SCBN any ownership or property rights in the Service Corridor or any other property belonging to the Municipality. SCBN shall be and remain a mere non-exclusive licensee of the Service Corridor. Placement of the Equipment in the Service Corridor shall not create or vest in the Municipality an ownership or property rights to the Equipment. SCBN shall not permit any real or personal property registrations claiming a right in the Service Corridor or any other property of the Municipality by virtue of SCBN's occupancy or use of the Service Corridor or by virtue of this Agreement. 31. This Agreement creates contractual rights only between the Municipality and SCBN and does not create an interest in the Service Corridor. SCBN covenants and agrees with the Municipality that SCBN shall not register this Agreement on title to the Service Corridor nor any right arising under it. 32. Nothing in this Agreement shall be construed as affecting any rights of others not a party to this Agreement to use the Service Corridor in accordance with Municipal legal authority. WORKERS' COMPENSATION COVERAGE 33. SCBN agrees that it shall obtain and carry at its own expense full Workers' Compensation Board coverage for itself and all workers, employees, servants and others engaged in any work on the Service Corridor or Other Municipally Owned Property. HAZARDOUS SUBSTANCES 34. The Municipality is not responsible, either directly or indirectly, for any damage to property or injury to a person, including death, arising from the escape, discharge, release, spill, migration and/or deposit of any Hazardous Substance from the Service Corridor unless such damage to property or injury to a person, including death, is related in any way to gross negligence or willful misconduct by any act or omission on the part of the Municipality, its officers, employees or agents. I . 14 NOTICES , 35. (a) Any notice given pursuant to this Agreement shall be in writing and shall be sufficiently given if delivered personally, mailed or transmitted by facsimile transmission as follows: THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE P.O. Box 100 Oro Station, Ontario LOL 2XO Attention: Director of Engineering and Environmental Services And to SCBN at: SCBN Telecommunications Inc. c/o 360 West Street South Orillia, Ontario L3V 6J9 , Attention: General Manager (b) Any such notice, if delivered personally, shall be deemed to have been received on the date on which it was delivered. If the date of delivery is not a Business Day, then the notice shall be deemed to have been received on the first Business Day next following such day. If notice is mailed, it shall be deemed to have been received on the third day after it was mailed, provided that if such day is not a Business Day then the notice shall be deemed to have been received on the first Business Day next following such day. If the notice is transmitted by fax or other form of recorded communication, it shall be deemed to have been received on the day of its transmission, provided that if such day is not a Business Day or if it is transmitted or received after the end of normal business hours, then the notice shall be deemed to have been received on the first Business Day next following the day of the transmission. - (c) Any party may change its address for service from time to time by notice given to the other party in accordance with the foregoing provisions. ASSIGNMENT 36. This Agreement/Licence shall not be assigned or transferred by SCBN without the prior written consent of the Township. . , , , J 15 ENTIRE AGREEMENT 37. This Agreement is the entire agreement between the Municipality and SCBN regarding the subject of this Agreement and it can be amended or supplemented only by a document executed in writing by both the Municipality and SCBN. 38. This Agreement shall be binding upon and shall enure to the benefit of the Parties and their respective successors and permitted assigns. 39. Notwithstanding section 28, if any provision of this Agreement is determined by any Court or administrative tribunal of competent jurisdiction to be illegal or beyond the power, jurisdiction or capacity of any party bound hereby, the Agreement shall be terminated, at the request of either party, by providing written notice to the other within 21 days of the receipt by the party of the Decision or Order of the Court or administrative tribunal. Otherwise, such provision shall be separate from this Agreement and the remainder of the Agreement shall continue in full force and effect, mutatis mutandis, and in such case, SCBN and the Township agree to negotiate, in good faith, to amend this Agreement so to implement the intentions as set out herein. 40. It is agreed and acknowledged by each of the parties that each is satisfied as to the jurisdiction of the Township to pass the By-Iaw(s) referred to in the recitals. Each party is satisfied as to the jurisdiction of the other to enter into this Agreement. SCBN hereby covenants and agrees that it shall not question the jurisdiction of the Township to enter into this Agreement or question the legality or enforceability of any portion thereof. The parties, their successors, assignees, assigns, lessee and sub-lessees are and shall be estopped from contending otherwise in any proceeding before a Court or administrative tribunal, including, but without limiting the foregoing, the CRTC. TIME 41. Time shall be of the essence of this Agreement. WAIVER 42. No alleged waiver or breach of this Agreement is effective unless it is an express waiver in writing of the breach in respect of which it is asserted against the property alleged to have given the waiver. No waiver by a party of any breach of this Agreement operates as a waiver of any other breach of this Agreement. J , , e 16 SINGULAR/PLURAL 43. In this Agreement, unless the context otherwise requires, the singular includes the plural and the masculine includes the feminine gender and a corporation. APPLICABLE LAW 44. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Province of Ontario. IN WITNESS WHEREOF the parties hereto have executed this Agreement by their duly authorized representatives. THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE J. SCBN Telecommunications Inc. ~~ao f:IMaryISCBN _ ACCESS AGREEMENTSIMunicipal Access Agreement - Final Version Aug 22.03 j. I , , e J 17 APPENDIX "A" DESIGN GUIDELINES FOR UTILITY STREET FURNITURE As a follow-up to the Municipal Access Agreement, the following is to be a guideline utilized for any street furniture that may be considered within any plans of subdivision. This policy will be for new developments and will not be considered for existing areas or where Equipment could be installed on existing pole lines. The intent of the Municipal Access Agreement is that all street furniture will be placed underground and will be flush to grade. It is acknowledged that whether the infrastructure be fibre optic or conventional wiring that there may be instances where there will be no choice but to have some aboveground facility. It is recommended that the following guidelines be utilized in the decision making process and all decisions are to be approved by the Director of Engineering and Environmental Services. 1. All efforts are to be made to install all plant underground. 2. Where every effort has been exhausted and there is no choice but to place a facility aboveground, the following criteria are to be used: (a) The plant shall be located within the base of a hydro pole, if such can be designed, and be able to accommodate the plant. (b) If the plant cannot be accommodated within a hydro pole, then an alternative structure shall be selected and can be in the form of a natural or artificial landscape item such as a rock or entry feature which would compliment the environment immediately surrounding its placement. The natural landscape item containing the plant must be kept to a minimum in size and it is suggested that the dimensions not exceed .5 metres in any direction. If a landscape element such as an entry feature is to be used, it must match the theme in the host neighbourhood. The structure shall be designed so as to prohibit entrance by unauthorized individuals. It must be designed so that maintenance personnel can gain access and complete maintenance work and the facility reinstated to its original appearance. Disturbance to the immediate area will be minimal to none. The colour of the structure shall be compatible with the existing area and shall be aesthetically pleasing. The number and frequency of any aboveground installation must be minimal and the overall plan for development depicting the locations must be approved by the Director of Engineering and Environmental Services. , ! , I e 18 The structure shall be kept away from driveway locations and shall, if at all possible, be situated adjacent to other structures necessary for the functioning of the development. The structure will be designed and built with safety and durability as critical design elements. , " , 19 . APPENDIX "8" , PROCEDURES FOR THIRD PARTY CLAIMS (i) If either Party (the "Indemnified Party") becomes aware of any third party claim (a "Third Party Claim") in respect of which the other Party (the "Indemnifying Party") is or may be liable pursuant to Section 18 of this Municipal Access Agreement, the Indemnified Party shall promptly give written notice thereof to the Indemnifying Party and, in any event, within ten (10) days of the date when the Indemnified Party became aware of the Third Party Claim. , (ii) The Indemnifying Party shall have the right, at its expense, to participate in or assume control of the negotiation, settlement or defence of any third party claim with respect to which the Indemnifying Party acknowledges its liability to indemnify the Indemnified Party pursuant to Section 18 of this Municipal Access Agreement, and in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party's out-of-pocket expenses incurred in defence of the Third Party Claim for which the Indemnifying Party has acknowledged its liability. (iii) Upon the assumption of control of the negotiation, settlement or defence of any Third Party Claim by the Indemnifying Party as set out above, the Indemnifying Party shall proceed diligently with the defence or settlement of the Third Party Claim at its sole expense. The Indemnified Party shall cooperate fully, but at the expense of the Indemnifying Party with respect to any out-of-pocket expenses incurred, to make available to the Indemnifying Party all pertinent information and witnesses under the Indemnified Party's control and to take such other steps as, in the opinion of counsel for the Indemnifying Party, are reasonably necessary to enable the Indemnifying Party to conduct such defence. e (iv) If the named parties to any action or proceeding include both the Indemnified Party and the Indemnifying Party and representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to actual or potential differing interests between them (such as the availability of the differing defenses), the Indemnifying Party and the Indemnified Party shall retain separate counsel. Each party shall be responsible for its own costs relating to such separate counsel. 1 ..-' (v) , I e 20 If the Indemnifying Party fails to participate in or assume the control of the negotiation, settlement or defence of the Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed and the amount of such settlement or any other final determination of the Third Party Claim shall be binding on the Indemnifying Party. ,.,'. t 21 > APPENDIX "c" , ARBITRATION PROCEDURES (i) Any dispute in connection with this Agreement or its performance, breach, termination or validity shall be finally settled by arbitration in accordance with this Appendix "C". Either party may initiate arbitration within ninety (90) days after a dispute has arisen, by delivering a written demand for arbitration upon the other party. The arbitration shall be conducted in accordance with the Ontario Arbitration Act, 8.0. 1991, c.17. The arbitration shall take place in Toronto, Ontario, and shall be conducted in English. , (ii) The arbitration shall be conducted by a single arbitrator having no financial or personal interest in the outcome of the arbitration. The arbitrator shall be appointed jointly by agreement of SCBN and the Municipality. In the event SCBN and the Municipality are unable to agree on the appointment of the arbitrator within twenty-one (21) days after notice of a demand for arbitration is given by any party, each party shall appoint an arbitrator and within twenty-one (21) days of the appointment of the second arbitrator, the two arbitrators shall agree upon the appointment of a third arbitrator who shall conduct the arbitration. Absent agreement or an award in the arbitration to the contrary, the arbitration fees and expenses shall be paid by 8CBN and the Municipality jointly. (iii) The arbitrator shall have the authority to award any remedy or relief that a court could order or grant in accordance with this Agreement, including, without limitation, specific performance of any obligation created under this Agreement, the issuance of an interim, interlocutory or permanent injunction, or the imposition of sanctions for abuse or frustration of the arbitration process. e (iv) The arbitral award shall be in writing, stating the reasons for the award and be final and binding upon SCBN and the Municipality with no rights of appeal. The award may include an award of costs, including reasonable legal fees and disbursements and fees and expenses of the arbitrator. Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets. '"'> ' .. , , e 22 SCHEDULE "A" Part Lot 2, Conc. 2, EPR Oro; Part Lot 3, Conc. 2, EPR Oro; Part Lot 4, Conc. 2, EPR Oro as in R01394807 (Portions 3 to 6) Oro-Medonte being all of PIN 58552-0051 (L T) Part Lot 2, Range 1, Oro as in R01394807 (Portions 7 and 8) Oro-Medonte being all of PIN 58552-0005 (L T) Part Lot 2, Range 2, Oro as in R01394807 (Portions 9, 10, 11, 12 and 13) Oro- Medonte being all of PIN 58552-0098 (L T) Part Lot 27, Conc. 3, Oro as in R01394807 (Portions 15, 16, 17, 18 and 19) Oro- Medonte being all of PIN 58551-0198 (LT)