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HomeMy WebLinkAboutOES 29-03 REPORT TO FINANCE & OPERATIONS COMMITTEE Report Number: OES 29-03 Date: June 6, 2003 From: Richard W. Holborn, P. Eng. Division Head Municipal Property & Engineering Subject: Proposed TELUS Mobility Communication Site Sideline 24 North of Highway 407 Lease Agreement Recommendation: 1. That Report OES 29-03 for a Lease Agreement for a TELUS Mobility Communication site in the City of Pickering be received; and 2. That a By-law be enacted to authorize the execution of a Lease Agreement in a form satisfactory to the Solicitor for the City and the Director, Corporate Services and Treasurer with TM Mobile Inc. (TELUS Mobility) for those lands consisting of part of the road allowance between Lots 24 and 25, Concession 5 (Sideline 24, south of Hwy 7), for the purposes of installing and maintaining communications equipment; and 3. That staff prepare the required documentation and by-law to stop-up and close the road allowance affected by the agreement; and 4. That the Mayor and Clerk be authorized to execute the Lease Agreement. Executive Summary: Not Applicable Financial Implications: The initial term of the Lease Agreement is a five-year term with a lease rate of $6000.00 per year, plus any taxes that are levied, charged or assessed upon the lands. TM Mobile Inc. (TELUS Mobility) will be responsible for the costs of access, installation, maintenance, electricity charges, permit fees, etc., as applicable to development of the site. The lease can be extended for three further consecutive five-year terms at either a negotiated rate or the original rate, plus Consumers Price Index (CPI). The revenue to be received in 2003 was not contemplated during the budget process and therefore, represents unbudgeted revenue. Report OES 29-03 Date: June 6, 2003 Subject: Proposed TELUS Mobility Communication Site Sideline 24 North of Highway 407 Lease Agreement Page 2 Background: TM Mobile Inc. (TELUS Mobility) provides communication service for the Durham Region Police Services and a site in central Pickering is required to maintain and enhance coverage in the area. The company pursued a site on Ontario Reality Corporation Lands close-by, but was advised that their lands within the Seaton area were temporarily frozen for lease purposes. TELUS then located a site that is suitable on the City's road allowance of Sideline 24 that is no longer in service due to the new structure over Highway 407 that re-aligned Sideline 24 further east. A location map (Attachment #1) is provided for reference. The City has contacted Ontario Realty Corporation and have been advised that these lands are not part of the Highway 407 right of way, nor are they required for Highway 407 purposes. A draft Lease Agreement (Attachment #2) has been prepared and forwarded to the City for consideration. Should the City agree to enter into a Lease Agreement, the terms of the agreement will be finalized to the satisfaction of the Solicitor for the City and the Director, Corporate Services & Treasurer and the agreement will be executed. The initial lease will be a five-year term with an annual lease rate of $6000.00 per year. The lease can be extended for up to three more consecutive terms of five years each for either a negotiated rate or the original rate indexed by the Consumer Price Index. TM Mobile Inc. (TELUS Mobility) will be responsible for costs associated with access to the site, installations and maintenance of the equipment, a survey to legally identify the site, and any taxes that may be levied on the property. In order for the City and TM Mobile Inc. (TELUS Mobility) to enter into this lease agreement, there will be a requirement to stop-up and close the portion of the road allowance to be used for the purposes of the lease. Should Council concur with the recommendation to enter into a lease agreement, staff will prepare the required documentation and by-laws to stop-up and close part of Sideline 24. Report OES 29-03 Date: June 6, 2003 Subject: Proposed TELUS Mobility Communication Site Sideline 24 North of Highway 407 Lease Agreement Page 3 Attachments: 1. Location Map 2. Lease Agreement 3. By-Law Prepared By: RH:ds Attachments I:\COUNCIL\OES 29-03.docJun-O3 Copy: Chief Administrative Officer Director, Corporate Services Director, Planning & Development City Clerk Recommended for the consideration of Pickering Cjty Co ncil I '- 407 ð . ( .i~ ,'ACHMENT#--L_. TOREPORT# or'.':> ,~(t-()~) I I HIGHWAY 7 PROPOSED TOWER LOCATION HIGHWAY ORIGINAL ROAD ALIGNMENT OPERA nONS & EMERGENCY SERVICES DEPARTMENT MUNICIPAL PROPERTY & ENGINEERING DIVISION SCALE, 1:10000 DATE' JUNE 6/2003 w Z ..J W 0 UJ 7 "'" N w Z --.J W 0 Uì ATTACHMENT FOR OPERATIONS & EMERGENCY SERVICES REPORT PROPOSED LOCATION OF COMMUNICATIONS TOWER L:\MP&E\THEMATIC MAPPING \ MAPS \ STR££T BASE\OE&S OIRECTOR\ATTACHMENT FOR REPORT\ ('I C'i w Z ..J W 0 UJ 407 ~ ,(TTACHMENT# þ' TOREPORT# Qt.-':> ;¿ 1-0) / of 4 OYfIONTO LEASE Site No.:1256 This option is granted this day of ,2003. By CI1Y OF PICKERING ("Grantor') to and in favour ofN Mobile Inc. ("TELUS Mobility") A. The Grantor represenis and warrants to TELUS Mobility that it is the owner or lessee of the real property(zes) described in the attached form of site lease or is the properly authorised ageni of such owner or lessee and has the authority to grant this option. B. The Grantor has agreed to grant to TELUS Mobility an option to lease the area(s) described in the attached form of site lease. In coosideratiæ for the payment or the pronrise of payment by TELUS Mobility to the Grantor of Five Hundred (CDN. $500.00) Dollars and other good and valuable consideratiæ, the receipt and sufficiency of \Wrlch are hereby acknowledged, the Grantor hereby grants to TELUS Mobility an exclusive and irrevocable optiæ for a period of three hundred and sixty-five (365) days ftom the date hereof (the "Option Period") to lease ftom the Grantor the area(s) described in the attached form of site lease on the terms and conditions set out therein. This option may be exercised at any time during the Option Period by 1ELUS Mobility: (a) indicating the Commencement Date (which shall be a date within the Option Period) and corresponding ending date on the attached site lease; (b) executing the attached site lease; and (c) providing the fully executed site lease (which may be by facsimile transmission) to the Grantor at the address shown below. Throughout the Option Period: (i) TELUS Mobility may enter onto the Premises (as defined in the attached form of site lease) to conduct necessary testing (at TELUS Mobility's sole cost and expense); and (ü) the Grantor will not act or omit to act in any manner 1hat could reasonably be expected to have the effect of rendering the exercise of this option less desirable to TELUS Mobility than it is on the date hereof Without limiting the generality of the foregoing, the Grantor will not dispose of its interest in the area(s) described in the attached form of site lease unless the acquirer of such interest has agreed to be bound by this option. The parties have requested that this option and all related documents be in English. Les parties ont exigé que cette optiæ de bail et tous les documents s'y rapportant soient rédigés en anglais. Address of Grantor: City of Pickering One the Esplanade Pickering, Ontario LIV 6K7 Attention: Richard Holborne Facsimile: 9054209685 Telephæe: 905 4204611 CITY OF PICKERING By: Name: Title: TM Mobile Inc. 200 Consilium Place, Suite 1600 Scarborough, Ontario MIH 313 Attention: Real Estate Director Facsimile: 1-800-788-6622 Telephone: 1-800-815-5715 TM MOBILE INe. By: Name: Title: CHMENT# :;J., TOREPOR, "j L i 0\ of 7 c£S ~ {¡-C'S Site No. ON- 1256 SITE LEASE This Lease is made as of January 29, 2003:. BET WEE N: THE CITY OF PICKERING, (the "Lessoc'1 and 1M Mobile me. ("JELUS Mobility") A. The Lessor represents and warrants to TELUS Mobility thai it is the owner or lessee of the real property(zes) described in Scfædule "A" (tfæ "Premises ') or is the properly auihorized agent of SUt:h owner or lessee and has the auihority to enter into this Lease. B. The Lessor has agreed to grant to TELUS Mobility a lease to it oftfæ area(s) described in Schedule "B" (the "Site ') being a portion of the Premises. NOW TlÆREFORE for tfæ rent (plus applicable sales tax and goods and services tax) set ou1 in Section 1 payable by TEL US Mobžlžty to tfæ Lessor and tfæ following covenants, conditions and agreements, the Lessor hereby leases to TEL US Mobžlžty the Site togetfær with its appurtenances færein described all on tfæ Terms and Conditions set oui below. Subject to receipt by 1ELUS Mobility of necessary regulatory and municipal consents with respect to 1ELUS Mobility's proposed use of the Site, the Lessor grants to 1ELUS Mobility: (i) the right to build, mahltain, occupy and use on the Site an equipment building (the "Shelter") or other designated room described in Schedule "B"; (n) the right to construct, install, operate, mahltain and repair on the Site such equipment, devices and ttade fixtures (collectively, the "Equipment") as may be necessary for the carrying on of1ELUS Mobility's telecommunications business; (ill) rights of access, including appropriate easements, servitudes and rights of way on, over and through the Premises, with persOlIDel, vehicles and necessary equipment to the Site and its appurtenances; and (iv) the right to use the' Site, including the Shelter and the Equipment, for the purpose of a telecommunicarions business and any other purposes as are incidental thereto. TO HA VE AND TO HOW for a term of five (5) years (the "Term') commencing on , 2003 (the "Commencement Date') and ending on , 2008 and any extension tenn(s) as provided in Section 2; all in accordance with and subject to the Terms and Conditions hereinafter provided Address of Less or: One The Esplanade Pickering, Ontario LlV 6K7 Attention: Richard Holbome Facsinñle: 905 420 9685 Telephme: 905 420 4611 42046602119 CITY OF PICKERING By: Name: TItle: GSI' Registration No.: 1M Mobile me. 200 ConsiliumPlace, Suite 1600 Scarborough, Ontario MlH 313 Attention: Real Estate Directoc Facsimile: 1-800-788-6622 Te1ephme: 1-800-815-5715 TM MOBILE INc. By: NatTIe: TItle: April 29, 2002 "i;,CHI"IENT# ,~ TOREPORl'i, ¿E.5 29-(;3 1ERMS AND CO~IJfON~ ON 1256 1. Rcntal Ratc. For the rights grapted by the Lessor to TELUS Mo~ility, 1ELUS Mç>bility shall pay. to the Lessor rent at the rate. of $6,000.00 per annmn plus applicable provincial sales tax and goods .and servI~ tip{, yearly ID advance, dunng the Tenn (and .any extensiOn term{s) as P!9yided below); provided iliat the Lessor has properly obtaIned a registratiOn nurn]jer for GST purposes and has commurucated same to TELùS MobIlIty. 2. Ri!!ht~ ~~egsiOl(" The Lessor h~by grant:.s to TELU~ Mobility the rights tp extend th~ Tenn of this Lease fOf three (31 furtho/ ~d consecutive IJ.efl. s 0 ve 15) years each WIthout notIce. Each nght shalf be automatically exerCIsed and shall not ~Ulre any pnor notice m writi!Jg and shall tàke effect ùnless TELUS Mobility spe,cifically elects not to exercise any such right at least ninety (90) âays WIor to the end of the Tenn or relevant extension tenn. Each such extension tenn will be upon the same terms and conditions as are herem contained for the Tenn except that the rent in each such extension tenD shall be equal to the rent prevailing in the immediatelyprecedipg five year period changed by an amount equal to the change in the Canadian Consumer Price fudex (all items) in such innnediately precëding periòii 3. Unsuitabili For TELUS Mobil' 's Pu oses. At any time during the Tenn or any extension thereof, for any reason whatsoever, TELUS Ilty may tenmnate s WI 0 ges or perui1ty by giving ninety (90) days written notice to the Lessor. 4. Covenants of TELUS Mobility. (a) Safety and Maintenance - TELUS Mobility shall install; operate, ground and maintain its EquiP!J1e1lt and the Shelter, in a good and wórkmanlike manner in accordance with sound engineering standaras and at a level of repair consistent WIth first class building standards. (b) Taxes, Rates and Asscssments - TELUS Mobility will tm.y as and when due all taxes, rates and assess~~" includin,g increases in real or Ì1IJ!11OVRble property taxes, that are levied, charged or asseSséd with respect to any business carried on by IJ:!.LUS MobilIty on or ÍÌ"om the Prennses. (c) Electricity Charges - TELUS Mobility shall pay for the electrical connections and all electricity charges attributable to TELUS Mobility's operations at the Site either.by having ínstalled a separately metered hydro service or, in circumstances ~ere the loça1 utility will ~ot install a separate meter, 1EI1JS MobIlIty shall mstall a submeter and shall ~te the Lessor for TELUS MobIlIty's electriCl!y consumptjon on a monthly basis, provided that any such ~ion is based on existing rates of the local utility. Iftechnologicalfy feasible, tlie Lessor shall allow TELOS MobifIty to install electrical connections to the Lessor's emergençy p<)wer generator on the Premises for emergènçy use by TELUS Mobility in the case of any failure of hydro service to the Site and 1ELUS MObility shall pay all costs attributable to such connections. (d) Government Regulation - TELUS Mobility shall, at its own expense, at all times ensure that the installation, ~tion and maintenance of its ~ipment (including any antenna tower that may be constructed by TELUS Mobility) and the Shelter comply willi all reguired laws, dirC<ÊonsL rules. and regulations of relevant governmental aUthorities, includíng all applicable building codes, and Industry Canadã and Transport I.A1I1lliJa reqUIrements. ( e) Inteñercnce - 1ELUS Mobili!y covenants that TELUS Mobility's operation of its radio syst~) shall not cause material interference or degradation of an~ other signals lawfully transmitted or received withiñ or on the Premises. If such mterference or degradation is reasonably demonstrated to lELUS M'obility, TELOS Mobility upon receiving notice ÍÌ"om the Lessor shall use all reasonable endeavours to innnediately COITect the problem. (ft Rcmoval of Egug>ment by TELUS Mobility - 1ELUS Mobility shall remove the &mipIl}Cßt ÍÌ"om the Premises within ninety (90) days àfter the tennination of this Lease and shall restore the Site to the con3ition it was at the date first above written, reasonable wear and tear excepted. 5. Covenants of thc Lessor. (a) Ouiet Possession - The Lessor has good right, full power and absolute authority to grant this Lease to TELUS Mobility and covenants that TELUS Mobility shall peaceably and HUietly holo and enJOY the Site and its appurtenances, subject to the terms and conditions ofthis Lease, The Lessor shall not make any change to tlie Site and its appurtenances at any time throughout the duration of this Lease without the prior written consent of1ELUS Mobility and no such change shall adversely affect the use being made DY 1ELUS Mobility of the Site. (b) Access - By way of appropriate easements, servitudes and rights of way on, over and tþrough the Premises, the Lessor shall provide to TELUS Mobility and its authonZe<f representatives and agents, W1ÏntetTl!Pted access with or without vehicles on a twen!y'-four (24) hours a day, seven (7) days a week basis to the Site and its a}J2urtenances, and such oilier rights as are ne~ to enable TELUS Mooility to install, roaintam and operate the Shelter and the Equipment, incliIêling but not limited to connecfmg its installation to the local utility. (c) Exclusivity - Thr~out the Tenn and all extensions thereot: the Lessor shall not use or grant a licence or lease space to apy other person( s) for the I'lIfPOS.e of the installation and operation of wireless commW1Ïcations equipment on or about the Premises or adjacent lands owned by the téssor, without the prior written consent ofTELUS Mobility. 6. TELUS Mobility's EQuioment. (a) The Shelter and the Equipment will remain the property of TELUS Mobility and notwithstanding the attachment or affixation of any of the Shelter and the Equipment to the Premises in any mannêr, all of the Shelter and the Equipment shall remain items of personal or moveable property and not fixtures. (þ) TELOS Mobility may make any alterations and/or iIpprovements on the Site during the Tenn and any extensions thereof without òbtaining the prior consent of the Lessor. Such alterations and/or improvements may include, but are not limited to the addition of antennas, microwave dishes, equipment shelter expansions and/or various equipment deemed necessary by TELUS Mobility on the Site. 7. Insurance. TELUS Mobility will at all times throughout the Tenn and any extension(s) thereof maintain: (a) All-Risk Pr~ Insurance covering the full insurable replacement cost of all of its undertaking, the Shelter and the Equipment located pursuant to this Lease witliout deduction for depreciation and with reasonable deductibles; and (b) Connnercial General Liability Insurdllce coverage in an amount not less than Five Million Dollars ($5,000,000) IJeT. occurrence for Bodily InJwyand Property Damage. At the Lèssor's re@est, such policy shall extend to include the Lessor as an Additional InSured to the policy but only ansing out offhe Named Iñsured's operations. Policy limits are not increased by such additions. At the Lessor's r~uest, 1ELUS Mobility shall provide a Memorandmn of Insurance evidencing that said coverages are in force and shall also notifY the Lessor in advance of any matenal change in coverage or cancellation of any such policy . 8. Lessor not Liable. Except for the negligent acts or omissions or the wilful and wrongful acts or omissions of the Lessor or the Lessor's ~loyees or tI1ose persons authorized by the Lessor to be on the Premisest,~he Lessor shall notòc liable to TELUS Mobility for any interference, inconvenienc:e or dãmage to the Shelter or any part of TELUS Mobility's J::,liuipment or any indirect or consequential damage resulting ÍÌ"om any cause including, without limitation, by fuilure or interruptions in the supply of electricity or other utility or oy fires severe conditions or other natural catastrophes or for any cause Whatsoever which is beyond the reasonable control of the Lessor. ' INITIALS: I I I "" TOREPO, _!::L of ,-+ CL'S ;:ÀLj-C") 9 TELUS Mobili1Y. not Liable. Except for the negligent acts or omissions or the wilful and wron,gful acts or omissions of TELUS Mobility or taus ßõõiItty's eI)1plöÿees and those ~ authorized by TELUS Mobility to be on the Prenuses, TELUS Mobility shall not be liable to the Lessor for any costs incurred or losses or damages suffered by the Lessor. 10. Default. UJ!OI1 the material defuult by either ~ 9f any of its covenants or obligations under this Lease, the party not in default may terminate 1I1išIëåse íf such detàuJt ~s not remeàied within fi1irtY (30) ~ of the pefaulting party receiving Defuul~ written ñ9iiq: .from the pa,rty not in defuult of such default or WIthin such longer penod as is reasoriable m the Circumstances so long as the party m defuult IS dilIgently movmg . to remedy the same. 11. TELUS Mobility's Financin!! Arran!!ements. (a) The Lessor acknowledges that TELUS Mobili1y has entered into~ and will be entering into, certain financing amm~ents which may require an assignment or hypothecation ofTELUS Mobility's rights and oblIgations under tlùs Lease as well as the granting orsecurity interests in the ~ or moveable pr~ of TELUS Mobility located' at the Prenllses. The Lessor consents to any sucl1 assigmnent. hVPÕthecation or grapting of security interests and to any transfers occurring on the enforcement of same; and the Lessor shall, at the request of T'ELUS Mobility, ãcknoWledge in wnting the foregoing in such form as the relevant financier may reasonably require. (b) Forth~p~ oftlùs Section 11, TELUS Mobility is executing this Lease for itself and as an agent for the financiers refeITed to herein WIth whom TELUS Mobility may be entering into financing arrangements 1ìom time to time. 12. Re!!istration. TELUS Mobility shall not publish or repster this Lease. TELUS Mobility may r~. ster a notice oflease or caveat on title to the Prenuses m respect hereof stipulatmg TELUS Mobility's mterest, the Term, any rights to extend an when applicable, a short form oflease and the Lessor will execute any docüments requit:ed to effect such regis1ration. Such regIstration may be e ected oil "behalf ofTELUS Mobility by an affiliated corporation as bare nominee for r~s1ration P!lfPOSes ~oiûj'. The Lessor also agrees to use its best efforts to obtain a non-disturbance agreement ftom any mortgagee( s) on the Premises in sucli form as 1ELUS Mobility may reasonably require. 13. Assil!nment. Subject to Section 11 above, tlùs Lease shall not be assignable 1?Y TELUS Mobility without the prior written consent of the Lessor sudl consenfñot to be unreasonably withheld or delayed. Notwithstmldiñg the foregoing, TELUS Mobility may, without consent: (i) assign its rights and obligations under this Leaše to any related or affiliated enti~ including a partnership; (ii) sub1et a R9fÌ.ion of the Site and its I!PPurtenances to any rel¡rteq Cf' affiliated ~tity inc1uding a partnership; and (hi) license fo a third party a portion of the Site and its appurtenances, lor use as a telecommumcatlODS antenna site. 14. Successors and Assi!!ns. This Lease shall enure to the benefit of and be binding upon the successors and assi~ of the Lessor and the successors and penm'Hëël asSlgDß ofTELUS Mobilityband no assignee Cf' successor of the Lëssor (including any transferee of or successor in title to the Premises) shall challenge the validity Cf' enforcea ility of any aspect of tlùs Lease and every assignee oc successor of the Lessor shall be bound by all obligations of the LeSsor hereundér. 15. ~. The provisions of this Lease shall be governed þy and interpreted in accordance with the laws of the Province ~¡:s located and the parties hereto attorn to the exclusive jurisdiction of the courts of that Province. The parties have n;qu,e~ed that tlps Lease and all related docuñ1ents be in English. Les parties ont exigé que ce bail et tous les documents s'y rapportant soient rédiges en anglms. i:ére are ~~t~~r~~~e':tmroÍ1s~~i~ :~~~~~ ~~e~~~~rt~U~~~~1. wiit~~:°in~fu~~ ~~ Scbedules~ may not be amended or modified except by wntten instrument executed by both parties. Notwithstanding the foregoing, it: following the execution of this Lease, JELUS Mobili!}', obtams a survey which identifies the location of the Site, it shall be attaChed hereto as Schedule "e" and shall take precedence over Schedule '13' and form part of this Lease. Each of the parties respectively acknowledges that the nature and scope of each of the Clauses oftlùs Lease have been adequately explained to it. 17. Facsimile Transmissions: Notice. The parties agree that tlùs Lease may be executed bY. either party and forwarded to the other party þy facsimile transmISSion and receipt by tacsunile transmissiOn of a C9PY of this Lease executed bv a party shall bind the p8!ty, so sending the fucsimile transmission. AnY notIce conteI)1plated or provided for under this Lease shall be given by persOOal delivery Cf' fuesimile transmission, which transmission is to be Confirmed, to the addresses set out opposite the signatures of the parties abõve. 18. ~. The Lessor hereby grants to TELUS Mobility f<r a period of twenty-four (24) months following the Connnenœïï.ïeiïflJäfé an írrevOCãble and exclusive option to lease ftom the Lessor any or all of the properties dèscribed in the attached Schedule "D" upon the same terms and conditions as are herein contained. 19. Severnhilrn:. Should any provision Cf' provisions oftlùs Lease be detennined to be void or unenforceable in whole or in part. it or they shall be dëeiñOO'ñõfto affect or impair the validity or enfCf'ceabilit)'. of any other provision and it or they shall be considered separate ana severable ftom the Lease and its remaining provisions which shall remain in force and be óinding on the parties. 20. Authorization. As provided in the attached letter, the Lessor hereby authorizes TELUS Mobility to obtain any infonnation ftom any person, WIth respect to the Premises, that TþLUS Mobility may require for the purposes of exercising its nghts under tlùs Lease and the Lessor agrees to execute same to confinn the fCf'egomg. 21. Schedules. Schedules and other documents attached or referred to in this Lease, including without limitation, the Schedules indicated below, are an mtegríù part of this Lease. Schedule "A" - 0 Schedule liB" - 0 Schedule "C" - 0 Schedule "D" - 0 Schedule "E" - 0 Authorization Letter - 0 INITIALS: I THE CORPORATION OF THE CITY OF PICKERING BY-LAW NO. Being a by-law to authorize the execution of a Lease Agreement between the Corporation of the City of Pickering and TM Mobile Inc. (TELUS Mobility) for the leasing of those lands consisting of part of the road allowance between Lots 24 and 25, Concession 5 (Sideline 24, south of Hwy 7) for the purposes of installing and maintaining communications equipment. WHEREAS pursuant to the provisions of Section 110 (1) Municipal Act, S.O. 2001, c. 25, as amended, the Council of the Corporation of the City of Pickering may enter into lease agreements for municipal capital facilities. NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE CITY OF PICKERING HEREBY ENACTS AS FOLLOWS: 1. The Mayor and Clerk are hereby authorized to execute a Lease Agreement in the form acceptable to the Solicitor for the City for a five-year (5) term ending December 31, 2008, between the Corporation of the City of Pickering and TM Mobile Inc., (TELUS Mobility). BY-LAW read a first, second and third time and finally passed this 23 day of June 2003. Wayne Arthurs, Mayor Bruce Taylor, Clerk