HomeMy WebLinkAboutPW 07-13 Resolution #150/13
City oq Report tO
p Dated December 9, 2013
Executive Committee
PI Report Number: PW 07-13
Date: December 2, 2013
From: Richard Holborn
Director, Engineering & Public Works
Subject: Antenna Site Agreement
- Custom Communications Ltd.
- File: A-1440
Recommendation:
1. That Report PW 07-13 of the Director, Engineering & Public Works regarding an
Antenna Site Agreement with Custom Communications Ltd. be received;
2. That the Mayor and City Clerk be authorized to execute a lease agreement for tower
antenna space with Custom Comunications Ltd. for a five-year term with the option
to renew for four additional five year terms;
Executive Summary: The Engineering & Public Works Department is seeking
Council's approval to enter into a lease agreement with Custom Communications Ltd.
for antenna tower space to support the City's Operations & Fleet Services Section two-
way radio communication system.
Financial Implications: Monthly payments of$375.00 (total annual cost of$4,500.00)
is divided equally between the Roads and Parks Current Budgets. In accordance with
the terms of the lease agreement, the rental charge will increase 5% annually.
Discussion: In June 2001, the original communication tower at the
Pickering Operations Centre was removed and a taller structure was erected to facilitate
installation of a microwave link between the Civic Complex and the Operations Centre.
A two-way radio antenna was also installed on this new tower, but numerous problems
were encountered with the radio transmission. After extensive efforts to rectifiy the
problem, the decision was made in March 2008 to relocate the radio transmitter to a
tower site in Clarington on a trial basis. This move greatly improved the radio system
performance.
As the City is satisfied with the arrangement and service provided by Custom
Communications Ltd., a formal lease agreement is required. The new Operations
Centre site on Clements Road is not conducive to an installation of a communication
Report PW 07-13 December 2, 2013
Subject: Antenna Site Agreement
Custom Communications Ltd. Page 2
tower, therefore, entering into a long-term agreement for the provision of this service will
ensure continuation of the two-way radio communication that is required.
Attachments:
1. Site Rental Agreement
Prepared By: Approved/Endorsed By:
Grant Smith Ric and Holborn., P. Eng.
Manager, Operations & Fleet Services Director, Engineering & Public Works
GS:nw
•
Recommended for the consideration
of Pickering City Councc
, doo-.
Tony Prevedel, P.Eng.
Chief Administrative Officer
Attachment / PW 07-13
Site ID:Clarington-4730 Thornton Road North,Oshawa,Ontario
CUSTOM COMMUNICATIONS LTD. -ANTENNA SITE AGREEMENT
1. Premises and Use. CUSTOM contained in this Agreement, if the Site is subject to a
COMMUNICATIONS LTD., an Ontario corporation Ground Lease, either party may terminate this
("Owner") grants a license to The Corporation of the Agreement without further liability upon the
City of Pickering ("Tenant"), at the Owner's Tower termination or expiration of Owner's right to
site described below: Tower antenna space and possession of the Site under the Ground Lease.
Shelter space for Tenant's base station equipment. Owner will not do, attempt, permit or suffer anything
The Site will be used by Tenant for the purpose of to be done which could be construed to be a violation
maintaining and operating, at its expense, a radio of the Ground Lease. This Agreement is subordinate
communication system. If Tenant desires to place to any mortgage or deed of trust which is now or may
equipment on the Site, Owner and Tenant will in the future be recorded against the Site. Promptly
negotiate the placement of the additional equipment after this Agreement is fully executed, if requested by
and the associated increased rent. The placement of Tenant, Owner will request the holder of any such
substitution equipment in accordance with Section 9 mortgage or deed of trust to execute a non-
shall not constitute additional equipment unless the disturbance agreement in a form provided by Tenant, .
same shall utilize additional space or capacity. and Owner will cooperate with Tenant at Tenant's
Tenant will use the Site in a manner which will not sole expense toward such an end to the extent that
unreasonably disturb the occupancy of Owner's other such cooperation does not cause Owner additional
tenants. financial liability. Tenant will not, directly or indirectly,
2. Term. The"Initial Term"of this Agreement shall on behalf of itself or any third party, communicate,
be five (5) years beginning on the date set forth negotiate, and/or contract with the lessor of the
below ("Commencement Date") and terminating on Ground Lease, unless Owner's rights. under the
the fifth anniversary of the Commencement Date. Ground Lease have been terminated.
This Agreement will automatically renew for four (4) 5. Assignment/Subletting. Tenant may not
additional terms (each a "Renewal Term") of five (5) assign or transfer this Agreement without the prior
years each, unless either party provides notice to the written consent of Owner, which consent will not be
other of its intention not to renew not less than one unreasonably withheld, delayed or conditioned.
hundred and twenty (120) days prior to the expiration However, Tenant may assign without the Owner's
of the Initial Term or ariy Renewal Term. prior written consent to any party controlling,
COMMENCEMENT DATE: November1,2013. controlled by or under common control with Tenant
3. Rent. Beginning on the Commencement Date provided that the assuming party has comparable
rent will be paid in equal monthly installments of three credit quality to that of Tenant. Tenant may not
hundred seventy five Canadian Dollars ($375.00) sublicense this Agreement. In no event will Tenant
("Rent"), in advance, due on the first day of each be relieved of any obligations or liability hereunder.
month, partial months to be prorated on a thirty (30) 6. Access and Security. Tenant will have the
day month. Rent will be increased annually on the reasonable right of access to the Tower where its
anniversary of the Commencement Date (during the Equipment is located; provided that Tenant must give
Initial and all Renewal Terms) by 5% of the monthly Owner forty-eight (48) hours prior notice. Tenant will
rate in effect for the prior year. This Agreement shall have unrestricted access twenty-four (24) hours a
be effective on the date last executed by the parties. day seven (7) days a week to its Pad or Shelter. In
4. Title and Quiet Possession. Owner represents the event of an emergency situation which poses an
and agrees (a) that it is in possession of the Site as immediate threat of substantial harm or damage to
fee owner or lessee under a ground lease ("Ground persons and/or property (including the continued
Lease"); (b) that if applicable, upon request from operations of Tenant's telecommunications
Tenant, Owner will provide to Tenant a copy of the equipment) which requires entry on the Tower,
Ground Lease with financial and other confidential Tenant may enter same and take the actions that are
terms redacted; (c) that it has the right to enter into required to protect individuals or personal property
this Agreement; (d) that the person signing this from the immediate threat of substantial harm or
Agreement has the authority to sign; and (e) that damage; provided that promptly after the emergency
Tenant is entitled to the quiet possession of the Site entry and in no event later than twenty-four (24)
subject to zoning and other requirements imposed hours, Tenant gives telephonic and written notice to
by governmental authorities, any easements, Owner of Tenant's entry onto the Site.
restrictions, or encumbrances of record throughout 7. Notices. All notices sent with respect to this
the Initial Term and each Renewal Term so long as Agreement shall be in writing and delivered to the
Tenant is not in default beyond the expiration of any other party via registered mail, return receipt
cure period. Notwithstanding anything to the contrary requested, or reputable overnight delivery service.
Custom Communications Ltd.5-1-13 1 Tenant Initials: Owner Initials:
Date:October 16,2013
Site ID:Clarington-4730 Thornton Road North,Oshawa,Ontario
Notices shall be deemed to have been delivered Tenant's Equipment remains on the Site after the
upon the actual, verifiable date of receipt or refusal termination or expiration date (even if it has been
of delivery thereof by the recipient party. The disconnected), Tenant will pay to Owner a hold-over
current addresses of the parties to which such fee equal to two hundred percent(200%) of the then-
notices should be sent are as follows: effective monthly Rent, prorated from the effective
date of termination to the date the Equipment is
Tenant: Corporation of the City of Pickering removed from the Site. Owner will have the right(but
Public Works Department not the obligation) to disconnect and remove
One The Esplanade Equipment from the Site. If, after the termination
Pickering, Ontario L1V 6K7 date, Owner disconnects and removes Equipment,
Tenant will pay to Owner upon demand three
Owner: Custom Communications Ltd. hundred percent (300%) of the disconnection,
161 North Rivermede Road, Unit 3&4 removal and storage expenses incurred by or on
Vaughan, Ontario behalf of Owner. If the Equipment is not reclaimed
L4K 3N6 by Tenant within forty-five (45) days of its removal
Attn.: President from the Site, Owner has the right to sell the
RE: (Clarington Site) Equipment and deduct therefrom any amounts due
under this Agreement, returning the remainder to
Tenant. Upon written notice by Owner to Tenant not .
Rental less than five (5) business days beforehand, unless
Payments: Custom Communications Ltd. such notice can not reasonably be provided in which
9000 Keele Street, Unit 2 event Owner will give Tenant the earliest possible
Vaughan, Ontario reasonable notice, Tenant will cooperate with Owner
L4K 0B3 in rescheduling its transmitting activities, reducing
RE: (Clarington Site) power,,or interrupting its activities for limited periods
of time in the event of an emergency or in order to
8. Installation and Improvements. Prior to permit the safe installation of new equipment or new
installing or allowing any Equipment to be installed at facilities at the Site or to permit repair to facilities of
the Site or making any changes, modifications or any user of the Site or to the related facilities.
alterations to such Equipment, Tenant, at its 9. Compliance with Laws. Tenant agrees to take
expense, will obtain all required approvals and will the Site in strictly"as is"condition. Owner represents
submit to Owner plans, specifications and proposed that the Site of the Owner and all improvements
dates of the planned installation or other activity, for located thereon, are in substantial compliance with
Owner's approval which approval will not be building, life/safety, disability and other laws, codes
unreasonably withheld, including, if requested by and regulations of• applicable governmental
Owner, a tower loading study and/or an authorities. Tenant will substantially comply with all
intermodulation study performed and certified by an applicable laws relating to its possession and use of
independent licensed professional engineer. The the Site and its Equipment. Upon request by Owner,
approved plans will be deemed incorporated into this Tenant will produce satisfactory evidence that all
Agreement. All installation of or other work on Equipment installed at the Site complies with all
Tenant's Equipment on the Tower will be at Tenant's applicable regulations pertaining to radio-frequency
sole expense and performed by Owner or one of its radiation standards and is licensed with all applicable
affiliates or subsidiaries. All installations, operation governmental authorities, including Industry Canada.
and maintenance of Equipment must be in • Owner accepts responsibility for the Site's
accordance with Owner's policies set forth in C. compliance with all tower or building marking and
Owner reserves the right to prohibit operation of any lighting regulations promulgated by Transport
Equipment it reasonably deems to be improperly Canada or NAVCANADA, as applicable. Owner
installed, unsafe or not included in the installation represents and warrants that the Site complies with
design plan. Owner agrees to cooperate with all applicable tower or building marking or lighting
Tenant's reasonable requests, at Tenant's expense, regulations promulgated by Transport Canada or
with respect to obtaining any required zoning NAVCANADA. Owner agrees that Tenant may install,
approvals for the Site and any improvements. Upon at Tenant's sole cost and expense as required for
termination or expiration of this Agreement, Tenant Tenant's Equipment, a tower lighting alarm
shall remove its Equipment and improvements and monitoring system (including, but not limited to,
will restore the Site to the condition existing on the commercial power and a dedicated surveillance
Commencement Date, except for ordinary wear and telephone line) to monitor the status of the
tear and insured casualty loss. If Tenant fails to tower/building lighting. Owner shall be solely
remove its Equipment as specified in the preceding responsible for reporting any lighting outages or
sentence, Tenant's Equipment will be subject to malfunctions to the appropriate governmental
disconnection, removal, and disposal by Owner. If
Custom Communications Ltd.5-1-13 2 Tenant Initials: Owner Initials:
Date:October 16,2013
Site ID:Clarington-4730 Thornton Road North,Oshawa,Ontario
authorities. Tenant's installation of such governmental authority or any easements required
,tower/building lighting alarm monitoring system will from any third party to operate the
not relieve Owner of its primary responsibility for telecommunications system facility, or if any such
compliance with all applicable tower or building approval is canceled, expires, is withdrawn or
marking and lighting requirements. If Tenant installs terminated by such governmental authority or third
a temporary generator as described above or party following Tenant's diligent efforts to maintain
contracts with Owner to place a permanent generator such approval.
at the Site, (i) Owner and Tenant acknowledge that 13. Default. If the Rent or other amount due
Tenant must comply with all applicable laws and hereunder is not paid in accordance with the terms
regulations concerning the installation, operation, hereof, Tenant will pay interest on the past due
maintenance and removal of Tenant's generator amounts at the lesser of (i) the rate of one and one-
and/or back up power supply including but not limited half percent (1.5%) per month, or (ii) the maximum
to obtaining any and all necessary government interest rate permitted by applicable law. If either
approvals and permits, and (ii) Tenant agrees to party is in default under this Agreement for a period
indemnify, defend and hold harmless Owner for any of (a) ten (10) days following receipt of notice from
and all costs, claims, administrative orders, causes of the non-defaulting party with respect to a default
action, fines and penalties which arise out of the which may be cured solely by the payment of money,
installation, operation, maintenance and removal of or (b) thirty (30) days following receipt of notice from
the generator and or back up power supply used the non-defaulting party with respect to a default
solely by Tenant, and (iii) Upon request of Owner, which may not be cured solely by the payment of
Tenant agrees to provide Owner with all relevant money, then, in either event, the non-defaulting party
information concerning the Tenant's generator and/or may pursue any remedies available to it against the
back up power supply necessary for Owner to comply defaulting party under applicable law, including, but
with any reporting obligations for which Owner may not limited to, the right to terminate this Agreement.
be responsible. If the non-monetary default may not reasonably be
10. Insurance. Tenant will procure and maintain a cured within a thirty (30) day period, this Agreement
public liability policy, with limits of not less than may not be terminated if the defaulting party
$1,000,000 for bodily injury, $1,000,000 for property commences action to cure the default within such
damage, $2,000,000 aggregate, which minimum thirty(30) day period and proceeds with due diligence
Owner may require adjusting at each renewal term, to fully cure the default.
with a certificate of insurance to be furnished to 14. Taxes. Tenant shall pay all taxes, including,
Owner within thirty (30) days of execution of this without limitation, sales, use and excise taxes, and all
Agreement and prior to performing any work. Such fees, assessments and any other cost or expense
policy will provide that cancellation will not occur now or hereafter imposed by any government
without at least fifteen (15)days prior written notice to authority in connection with Tenant's payments to
Owner. Tenant will cause Owner to be named as an Owner, Tenant's Equipment or Tenant's use of the
additional insured on such policy. Site.
11. Interference. Tenant understands that it is the 15. Indemnity. Owner and Tenant each
intent of Owner to accommodate as many users as indemnifies the other against and holds the other
possible and that Owner may rent space to any other harmless from any and all costs (including
entity or person(s) desiring its facilities. Tenant shall reasonable attorneys' fees and costs) and claims of
not cause, by its transmitter or other activities, liability or loss which arise out of the use and/or
including the addition of any equipment at a future occupancy of the Site by the indemnifying party
date, interference to Owner or other tenants that including, without limitation, any damage occurring
have previously commenced rental payments. If outside of the Site in connection with Tenant's
interference occurs which involves Tenant, Owner installation of Equipment. This indemnity does not
may require that an intermodulation study be apply to any claims arising from the gross negligence
conducted at Tenant's cost. If Owner determines that or intentional misconduct of the indemnified party.
the interference is the responsibility of Tenant, Owner Except for its own acts of gross negligence or
will notify Tenant and Tenant shall have five (5) intentional misconduct, Owner will have no liability for•
business days from date of notice to correct the any loss or damage due to personal injury or death,
interference. property damage, loss of revenues due to
12. Termination by Tenant. Tenant may terminate discontinuance of operations at the Site, libel or
this Agreement at any time by notice to Owner slander, or imperfect or unsatisfactory
without further liability if(i) Owner fails to have proper communications experienced by the Tenant for any
possession of the Site or authority to enter into this reason whatsoever.
Agreement; or (ii) Tenant does not obtain, after
making diligent efforts, all permits or other approvals 16. Hazardous Substances. Owner represents
(collectively, "approval") required from any that it has no knowledge of any substance, chemical
or waste (collectively, "substance") on the Site that is
Custom Communications Ltd.5-1-13 3 Tenant Initials:_Owner Initials:
Date:October 16,2013
•
Site ID:Clarington-4730 Thornton Road North,Oshawa,Ontario
identified as hazardous, toxic or dangerous in any on wheels on the Site, in the event of a casualty. To
applicable federal, provincial or municipal law, the extent possible, Owner will cooperate with Tenant
regulation, rule, order or guideline (collectively, in Tenant's implementation of its emergency
"Environmental Laws"), beyond levels of responses as the same may exist from time to time.
concentration permitted by the applicable 19. Miscellaneous.
Environmental Laws. Tenant or Owner will not (a) This Agreement applies to and binds the heirs,
introduce or use any such substance on the Site in successors, executors, administrators and assigns of
violation of any applicable Environmental Law, or the parties to this Agreement;
permit any discharge or release of such substance on (b) This Agreement is governed by the laws of the
the Site. Province in which the Site is located;
17. Liens. Tenant will not permit any mechanics, (c) Subject to the provisions of the Ground Lease,
materialman's, construction or other liens to stand Tenant shall have the right, at its expense, to register
against the Site for any labor or material furnished by a short form, summary, caveat, notice or
Tenant in connection with work of any character memorandums as applicable of this Agreement
performed on the Site by or at the direction of the ("Notice") on title to the Site, including the term and
Tenant. In the event that any notice of lien will be any options to renew, but excluding any financial
filed or given, Tenant will, within thirty (30) days after information. Any such Notice shall be submitted to
the date of filing cause the same to be released or Owner for prior approval, which approval will not be
discharged by either payment, deposit, or bond. unreasonably withheld or delayed. If approved,
Owner will be indemnified by Tenant from and Owner will execute or cause to be executed
against any losses, damages, costs, expenses, fees documents required to register the Notice, and
or penalties suffered or incurred by Owner on Tenant will, at its expense, remove such registration
account of the filing of the claim or lien. upon termination of this Agreement or earlier to the
18. Casualty or Condemnation. In the event of extent required by the terms of the Ground Lease. If
any damage, destruction or condemnation or Tenant fails to remove the registration in such case,
expropriation of the Site, or any part thereof, not Tenant irrevocably constitutes Owner as its nominee
caused by Tenant that renders the Site unusable or to sign and register any document Owner deems
inoperable, Owner will have the right, but not the necessary or useful to delete the registration;
obligation, to provide an alternate location, whether (d) This Agreement (including the Exhibits)
on the same Site or another Site, which shall meet constitutes the entire Agreement between the parties
with the tenant's approval or to terminate this concerning the Site and supersedes all prior written
Agreement within thirty (30) days after the damage, and verbal agreements, representations, promises or
destruction, condemnation or expropriation. If Owner understandings between the parties. Any
does not terminate this Agreement: (i) the Rent amendments to this Agreement must be in writing
payable hereunder will be reduced or abated in and executed by both parties;
proportion to the actual reduction or abatement of (e) If any provision of this Agreement is invalid or
use of the Site by Tenant; and (ii) Owner will make unenforceable with respect to any party, the
any necessary repairs to the Site caused by the remainder of this Agreement or the application of
damage or destruction and will be entitled to use any such provision to persons other than those as to
and all insurance proceeds to pay for any repairs. In whom it is held invalid or unenforceable, will not be
the event Owner has not proceeded to repair, replace affected and each provision of this Agreement will be
or rebuild the Site within sixty (60) days after the valid and enforceable to the fullest extent permitted
damage or destruction, after giving thirty (30) days by law;
written notice and Owner's failure to comply within (f) The prevailing party in any action or proceeding in
that time frame, 'then Tenant may terminate this court or mutually agreed upon arbitration proceeding
Agreement. Owner will in no event be liable to to enforce the terms of this Agreement is entitled to
Tenant for any damage to or loss of Tenant's receive its reasonable legal fees and other
Equipment, or loss or damage sustained by reason of reasonable enforcement costs and expenses from
any business interruption suffered by reason of any the non-prevailing party;
condemnation or expropriation, act of God, by (g) Failure or delay on the part of Tenant or Owner to
Tenant's act or omission, or Tenant's violation of any exercise any right, power, or privilege hereunder will
of the terms, covenants or conditions of this not operate as a waiver thereof; waiver of a breach of
Agreement, (unless caused solely by Owner's any provision hereof under any circumstances will not
intentional misconduct or gross negligence). The constitute a waiver of any subsequent breach of the
terms and conditions of this Section 21 shall survive provision, or of a breach of any other provision of this
the termination of this Agreement. Owner Agreement; and
acknowledges that Tenant may have certain (h) Tenant agrees and acknowledges that, in
emergency procedures that Tenant may desire to conjunction with other entities which may transmit
implement, including the temporary location of a cell from the Site, if necessary due to applicable RF
emission standards and upon reasonable notice,
Custom Communications Ltd.5-1-13 4 Tenant Initials: Owner Initials:
Date:October 16,2013
Site ID:Clarington-4730 Thornton Road North,Oshawa,Ontario
Tenant shall reduce power or terminate station
operations to prevent possible overexposure of
worker to RF radiation.
•
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Custom Communications Ltd.5-1-13 5 Tenant Initials:_Owner Initials:
Date:October 16,2013
Site ID:Clarington-4730 Thornton Road North,Oshawa,Ontario
TENANT: The Corporation of The City of Pickering
H.S.T No:
By:
Title: Address:
Date:
Witness: Witness:
OWNER: CUSTOM COMMUNICATIONS LTD., an Ontario Corporation
H.S.T No: 13762 6412 RT0001
•
By: Wayne Wood
Title: Vice President Address: 161 North Rivermede Road, Unit 3&4
Date: Vaughan, Ontario L4K 3N6
Witness: Witness:
Custom Communications Ltd.5-1-13 6 Tenant Initials:_Owner Initials:
Date:October 16,2013
e SCRIBE eSCRIBE .Workflow Status: eSCRIBE Approval Workflow
MEET:0GL EVOLVED
Workflow Information
Initiator: Schweyer,Donna M. Document: PW 07-13 Antenna Site Agreement
Started: 11/14/2013 11:34 AM Status: Approved
Last run: 11/14/2013 2:13 PM
1 Tasks
The following tasks have been assigned to the participants in this workflow.Click a task to edit It.You can also view these tasks In the list Tasks.
Assigned To Title Due Date Status Related Content Outcome
Holbom,Richard PW 07-13 Antenna Site Agreement.dooc Review 11/16/2013 Completed PW 07-13 Antenna Site Agreement Approved
Prevedel,Tony PW 07-13 Antenna Slte Agreement.docx Review 11/18/2013 Completed PW 07-13 Antenna Site Agreement Approved
Workflow History
The following events have occurred in this workflow.
al Date Occurred Event Type _j User ID Description Outcome
11/14/2013 11:34 AM Workflow Initiated Schweyer,Donna M. eScribe Approval Started
11/14/2013 11:34 AM Task Created Holborn,Richard Approval Task Assigned • -
11/14/2013 11:41 AM Task Modified Schweyer,Donna M. Task Changed Task Assignments Changed
Task assigned to Holborn,Richard had a delegate added Schweyer,Donna M.
11/14/2013 11:41 AM Task Completed Schweyer,Donna M. Document Approved Approved By Delegate:Schweyer,Donna M.
11/14/2013 11:41 AM Task Created Prevedel,Tony Approval Task Assigned -
11/14/2013 2:12 PM Task Modified Donaldson,Margaret Task Changed Task'Assignments Changed
Task assigned to Prevedel,Tony had a delegate added Donaldson,Margaret
11/14/2013 2:13 PM Task Completed Donaldson,Margaret Document Approved Approved By Delegate:Donaldson,Margaret
11/14/2013 2:13 PM Workflow Completed System Account Document was Approved
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