2012-147 Lease Agreement with Point to PointTHE CORPORATION OF THE TOWNSHIP OF ORO- MEDONTE
BY -LAW NO. 2012 -147
A By -law to Authorize the Execution of a Lease Agreement
Between The Corporation of the Township of Oro - Medonte and
Point to Point Broadband Inc.
(Block 54, Plan 51 M -726 — 2565 Bidwell Road)
WHEREAS the Municipal Act, 2001, S.O. 2001, c.25, Section 224, as amended,
states that it is the role of Council to ensure that administrative practices and
procedures are in place to implement the decisions of Council;
AND WHEREAS the Council of The Corporation of the Township of Oro - Medonte
deems it expedient to enter into a Lease Agreement with Point to Point Broadband
Inc. for the purpose of installing, maintaining and operating a broadband steel
communication tower on municipally owned property, to provide broadband access
to the public;
NOW THEREFORE the Council of the Township of Oro - Medonte hereby enacts as
follows:
1. That the Mayor and Clerk are hereby authorized to execute the Lease
Agreement between The Corporation of the Township of Oro - Medonte and
Point to Point Broadband Inc. attached hereto as Schedule "A" and forming
part of this By -Law.
2. That this by -law shall take effect on the final passing thereof.
BY -LAW READ A FIRST, SECOND AND THIRD TIME, AND PASSED THIS 15TH
DAY OF AUGUST, 2012.
THE CORPORATION OF THE TOWNSHIP OF ORO- MEDONTE
Mayor, H.S. Hug s
'17 /117 ��
Clefk. J. Do
LAND LEASE AGREEMENT
In Pursuance of the Short Forms of Leases Act, R.S.O. 1990, c. SA 1.
This Lease Agreement made as of the JQ` ' day of Ailgu:�8t , 2012
BETWEEN:
The Corporation of the Township of Oro - Medonte
(hereinafter referred to as "Township ")
-and-
Point to Point Broadband Inc.
a corporation incorporated pursuant to the laws of the Province of Ontario
(hereinafter referred to as "PTP ")
Witness that in consideration of the rents, covenants, conditions, agreements and
obligations stipulated herein, the Township and PTP covenant and agree as follows:
1. GRANT OF LEASE
1) The Township leases the lands and premises described as Block 54 on Plan
51M-726 and known municipally as 2565 Bidwell Road in the Township of Oro -
Medonte (the "Premises ") to PTP for the sole purpose of installing, maintaining
and operating a broadband steel communication tower to provide broadband
access to the public:
a) at the Rent set forth in Section 2;
b) for the Term set forth in Section 3: and
c) subject to the conditions and in accordance with the covenants,
obligations and agreements more particularly set out in this Lease.
2) The Township covenants that it has the right and proper authority to grant the
leasehold interest in the Premises to PTP free from encumbrances except as is
presently disclosed on title.
2. RENT
In recognition of the joint effort of PTP and the Township to provide and improve broadband
access to the residents and businesses of Township of Oro- Medonte within the County of
Simcoe, the Township and PTP agree that, the Base Rent be fixed at a nominal sum of Two
[2]
($2.00) Dollars per annum during the currency of this lease and any subsequent renewals
thereof. In addition, PTP shall pay to the Township quarter - yearly, as additional rent
(Additional Rent) the following:
PTP will pay $100.00 plus HST per month upon PTP acquiring 25 users; and
$150.00 plus HST per month for lease rental upon PTP acquiring 35 users.
Payment shall be made to the Township at the end of each quarter year, computed from
September 1, 2012, accompanied by a written report detailing the number of users.
As further consideration, PTP shall provide to the Township, at no cost or charge to the
Township, one (1) internet connection to a facility within PTP's network to be utilized by the
Township.
3. TERM AND POSSESSION
1) PTP shall have possession of the Premises for an initial term of seven (7) years,
commencing on the 1' day of September, 2012 and ending on the 31� day of
August, 2019 (the "Term).
2) Provided that PTP is in good standing throughout the Term and there has been
no default hereunder, PTP shall have the option to renew this Lease for two (2)
consecutive six (6) year terms on the same terms and conditions, including the
rental rate as set out in this Lease.
3) Subject to the Township's rights under this Lease, and provided the Lease is in
good standing, the Township covenants and agrees that PTP shall have quiet
enjoyment of the Premises, subject to the public's right of access to the lands,
during the Term of this Lease without any interruption or disturbance from the
Township or any other person or persons lawfully claiming through the Township.
4. LICENCING, SUBLEASING
PTP shall be entitled to sublet or license space on the tower to a third party with the
Township's written consent and which consent shall not be unreasonably withheld, but in so
doing PTP shall not be relieved from its obligations under this Lease. Provided further that
the third party shall pay Additional Rent as set out in paragraph 2 and the third party users
shall be included in the written report to be received by the Township as provided in
paragraph 2.
5. USE
1) During the term of this Lease the Premises shall not be used for any purpose
other than a communications tower and ancillary building without the prior written
consent of the Township.
2) PTP shall not do or permit to be done at the Premises anything which may
constitute a breach of any by -law, statute, order or regulation of any municipal,
[3]
provincial, federal or other competent authority having jurisdiction over and /or
relating to the Premises.
3) PTP agrees to allow the Township to install its own radio communications
equipment on the Communications Facility tower for municipal purposes if so
deemed necessary by the Township and at no cost to the Township provided that
the installation of such equipment does not materially interfere with the operation
of the Lessee's or Sub - Lessee's equipment installed on the Communications
Facility tower.
6. COMMUNICATIONS FACILITY CONSTRUCTION AND OWNERSHIP
PTP shall be entitled to erect on the Premises a steel telecommunications tower, ancillary
building, related equipment, antennas and poles (all the components of which collectively
comprise the "Communications Facility"). PTP in constructing the tower shall install climb
shields not less than six (6) feet in height. The Communications Facility shall remain the
exclusive property of PTP throughout the term of this Lease any renewal term or terms.
Upon expiration or termination of this Lease, the Communications Facility shall be removed
by PTP and the Premises shall be restored to a clean condition to the satisfaction of the
Township.
7. REPAIR AND MAINTENANCE
1) PTP covenants and agrees that during the Term of this Lease and throughout
any renewal term or terms PTP shall be responsible to maintain the Premises
and the Communications Facility in good condition and, subject to the
requirements of Section 9 below, to repair or replace the Communications
Facility arising from damage caused by fire, lightning or storm.
2) The Township covenants that during the term of this Lease and any renewal
thereof, the Township shall provide to PTP uninterrupted access to the Premises
at all times.
3) PTP covenants and agrees that during the Term of this Lease and throughout
any renewal term or terms PTP shall be responsible to maintain access,
including snow removal, to the Communications Facility at its sole expense.
8. INDEMNIFICATION AND INSURANCE
1) PTP covenants to keep the Township indemnified against all claims and
demands whatsoever by any person, whether in respect of injury to person or
damage to property, arising out of or occasioned by the maintenance, use or
occupancy of the Premises including the Communications Facility or the
subletting or licensing of same or any part thereof. PTP further covenants to
indemnify the Township with respect to any damage to the Premises occasioned
by or arising from the act, default, or negligence of PTP, its officers, agents,
servants, employees, contractors, customers, invitees or licensees.
[4]
2) PTP shall carry insurance in its own name insuring against the risk of damage to
PTP's property within the Premises including the Communications Facility which
may be caused by fire or other perils and the policy shall provide for coverage on
a replacement cost basis to protect PTP's stock -in- trade, equipment, trade
fixtures, and improvements.
3) PTP and any user subletting space on the tower from PTP shall carry public
liability insurance in an amount of no less than $5,000,000.00, in which policy the
Township shall be a named as an additional insured, and PTP shall provide the
Township with proof of coverage for PTP and any user subletting space on the
tower satisfactory to the Township prior to commencement of any works relating
to erection of the tower, including the delivery of the equipment to the Premises,
and on each anniversary. The policy shall contain a non - cancellation and
automatic renewal provision that provides the Township with at least thirty (30)
days prior written notice of pending cancellation. In the event that the policy of
insurance should be cancelled or terminated, the Township shall be entitled to
place insurance on the Premises to cover the potential loss or liability with
respect to the Communications Facility and shall be entitled to recover the cost of
the premium(s) paid from PTP as Additional Rent.
9. DAMAGE TO PTP'S PROPERTY ON THE PREMISES
1) If PTP's Communications Facility to be located on the Premises is damaged or
destroyed, in whole or in part, by fire or other peril, then the following provisions
shall apply:
a) If the damage or destruction renders the Communications Facility unfit for
its intended use and impossible to repair or rebuild using reasonable
diligence within one hundred and twenty (120) clear days from the
happening of such damage or destruction, then the Term hereby granted
may, at PTP's option exercised by notice in writing to the Township,
cease from the date the damage or destruction occurred, and PTP shall
immediately surrender the remainder of the Term and return possession
of the Premises to the Township, and any Rent payable from the time of
the surrender shall abate. PTP shall be solely responsible for all costs in
the removal of the Communications Facility and restoration of the lands to
their original condition.
b) If PTP's Communications Facility can, in PTP's opinion, be repaired and
rendered fit for its intended use within one hundred and twenty (120) days
from the happening of the damage or destruction, but the damage
renders the property wholly unfit for its intended use, the Rent hereby
reserved shall not accrue after the day that such damage occurred, or
while the process of repair is going on but continues to be payable by
PTP. PTP shall repair the Communications Facility with all reasonable
speed and shall continue to maintain
[51
insurance coverage at all times pursuant to Section 8 of this Lease at all
time during the period of repair and until the Communications Facility is
again rendered fit for its intended use;
2) Any question as to the degree of damage or destruction or the period of time
required to repair or rebuild shall be determined by PTP, acting reasonably.
10. SERVICES
All costs for utilities, services or facilities required by PTP for the operation of the
Communications Facility on the Premises, including fees for obtaining building
permits, shall be the sole responsibility of PTP. The Township shall, at PTP's cost,
see to the construction of a second meter to measure hydro consumption to the
Communications Facility and PTP shall be responsible for all hydro consumed.
11. REALTY TAXES
The Township shall be responsible for realty taxes related to the Premises, but PTP
shall reimburse the Township on an annual basis for any increase in the Township's
realty taxes caused by PTP's erection of the Communications Facility.
12. REGISTRATION OF LEASE
PTP may, at its discretion, register on title to the Premises, a Notice of this Lease.
13. SUBORDINATION AND POSTPONEMENT
1) This Lease and all the rights of PTP under this Lease are subject and
subordinate to any and all charges against the land, whether the charge is in the
nature of a mortgage, trust deed, lien or any other form of charge arising from the
financing or re- financing, including extensions or renewals, of the Township's
interest in the Premises.
2) Upon the request of the Township, PTP will execute any form required to
subordinate this Lease and PTP's rights to any such charge, and will, if required,
attorn to the holder of the charge.
3) No subordination by PTP shall have the effect of permitting the holder of any
charge to disturb the occupation and possession of the Premises by PTP as long
as PTP performs its obligations under this Lease.
[6}
14. NOTICE
1) Any notice required or permitted to be given by one party to the other pursuant
to the terms of this Lease may be given:
To the Township as follows:
The Corporation of the Township of Oro - Medonte
148 Line 7 South, Box 100
Oro, ON, LOL 2X0
Attention: Clerk
Fax: (705) 487 -0133
To PTP as follows:
38 Hooper Road
Barrie, Ontario
L4N 8Z9
2) The above addresses may be changed at any time by giving ten (10) days
written notice.
3) Any notice given by one party to the other in accordance with the provisions of
this Lease shall be deemed conclusively to have been received on the date
delivered if the notice is served personally or seventy -two (72) hours after
mailing if the notice is mailed. If notice is delivered by facsimile transmission, it
shall be deemed to have been delivered at the time shown on the delivery
verification notice stamped on the facsimile transmission delivery confirmation
receipt. If notice is delivered by e-mail of a ".pdf' format data file, such
signature shall create a valid and binding obligation of the party executing (or on
whose behalf such signature is executed) with the same force and effect as if
such facsimile or ".pdf' signature page were an original thereof.
16. ASSIGNMENT BY TENANT
1) PTP may not assign this Lease to a corporate affiliate or to a purchaser of all or
part of PTP's assets without the Township's written approval thereof, and which
approval shall not be unreasonably withheld; provided PTP shall have first notified
the Township of such assignment in writing and shall have delivered to the Township
sufficient information to ensure that the insurance and notification provisions of this
Lease are maintained to the Township's satisfaction, failing which the Township shall
be entitled to terminate this Lease at its sole option.
16. INTERPRETATION
1) The words importing the singular number only shall include the plural, and vice
versa, and words importing the masculine gender shall include the feminine
[7l
gender, and words importing persons shall include firms and corporations and
vice versa.
2) Unless the context otherwise requires, the word "Township" and the word "PTP"
wherever used herein shall be construed to include the executors,
administrators, successors and assigns of the Township and PTP, respectively.
IN WITNESS WHEREOF the Township and PTP have executed this Lease as of the
date first written above.
THE CO
RPORATION OF THE TOWNSHIP OF ORO- MEDONTE
4��V IC4��
i
Per:
M- S.-Hughes - Ma f r
i
i
Dou las i — CA Jerk
i
POINT TO POINT BROADBAND INC.
Per:
Sam Lowry, V&P-reiioyt
I have authority to bind the corporation