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HomeMy WebLinkAboutBy-law 1871/84THE CORPORATION OF THE TOWN OF PICKERING BY-LAW NO. 1871/84 Being a by-law to authorize the execution of an Agreement between the Corporation of the Town of Picketing and Picketing Cable T.V. Limited for the use of Town property. WHEREAS, pursuant to the provisions of section 210.111 of the Municipal Act, R.S.O. 1980, chapter 302, a by-law may be passed by the council of a local municipality for authorizing, inter alia, the erection, placing, construction and maintenance of certain equipment upon, across or along any highway or public place for the purpose of transmitting radio and television programs; NOW THEREFORE, the Council of the Corporation of the Town of Pickering HEREBY ENACTS AS FOLLOWS: The Mayor and Clerk are hereby authorized to execute an Agreement in the form attached hereto as Schedule A between the Corporation of the Town of Picketing and Picketing Cable T.V. Limited for the use of certain Town proper- ty for cable television/radio distribution purposes between July 3rd, 1984 and September 30st, 1999. BY-LAW read a first, second and third time and finally passed this 3rd day of July, 1984. TOWN OF PICKERING APPROYED LEGAL D~Fq~ Schedule A to By-Law 1871/8~ THIS AGREEMENT made in duplicate as of this day of 1984. BETWEEN: THE CORPORATION OF THE TOWN OF PICKERING (hereinafter called "Town'9 OF THE FIRST PART, - and - PICKERING CABLE TV LIMITED (hereinafter called "Company'9 OF THE SECOND PART. WHEREAS the Company is the holder of a valid license duly issued under The Broadcasting Act of Canada by the Canadian Radio-television and Telecommunications Commission ("CRTC") authorizing it to carry on a broadcasting receiving undertaking (the "CATV Service") in the Town of Picketing. AND WHEREAS the CATV Service so authorized has been and is being constructed and is and has been operating in the Town of Picketing. AND WHEREAS on or about the 30th day of August, 1976 the Town entered into an agreement {the "Prior Agreement") with the Company wherein the Town granted to the Company the right to use Town property for the purposes therein described. AND WHEREAS the Prior Agreement has expired and the arrangements therein provided were renewed pursuant to an agreement dated April 21, 1981 (the "Present Agreement") AND WHEREAS the Company and the Town are desirous of entering into a revised agreement in place and stead of the Present Agreement on the terms and conditions hereinafter set forth. NOW THEREFORE THIS AGREEMENT WlTNESSETH THAT in consideration of the sum of One Dollar {$1.00) of lawful money of Canada now paid by the Company to the Town, receipt whereof is hereby acknowledged by the Town, and other good and valuable consideration, the parties hereto covenant and agree as follows: Subject to the terms and conditions of this agreement, the Town grants to the Company the right to use, for the purpose of receiving, transmitting, originating or transferring electronic signals by coaxial cable, or successor or substitute technology, all Town road allowances, public highways, easements and rights-of-way owned by, or the benefit of which is vested in the Town (to the extent such easement or right of way permits the Town to permit use thereof by the Company in common with the Town) (the "Town Property") and in connection therewith to instal, re-locate, maintain, repair, replace and operate lines of communication consisting of cables, conduits, poles, on-line amplifiers, cable drops, junction boxes and other related on-line equipment as are required or as may be necessary and proper for the operation of the CATV Service. Only such poles, towers, wires, cables, amplifiers, pipes, ducts , conduits and related or ancillary equipment as are required by the Company from time to time to enable it to deliver its CATV Service in the Town of Picketing, shall be installed on, in or under Town Property, provided that any such location or relocation is first approved in writing by the Director of Public Works of the Town which approval shall not be arbitrarily withheld. -2- Subject to Clause 3 (b) hereof, and after the date hereof, before any CATV Service related equipment or material is installed, erected or relocated by the Company there shall be filed with the Director of Public Works of the Town a plan showing the proposed work in detail in a form satisfactory to him. In the event of the relocation or removal of any substantial element of the installed CATV Service related equipment, notice of such removal with particulars thereof shall be given to the Director of Public Works for his approval. The approval by the Director of Public Works for equipment and materials to be installed on poles and towers, or within pipes, ducts, trenches and conduits, erected, constructed, or laid down by the Company or its contractor jointly in conjunction with the Picketing Hydro Electric Commission, Ontario Hydro and/or Bell Canada or any of them, shall be by the regular location approval procedure used by such bodies, or any of them, as the case may be, for their own plant and subject to the same criteria for approval. (a) (b) (c) (d) (e) (f) (a) The Company shall perform all erection, maintenance, construction, laying down, placing and repairs in accordance with work permits issued to the satisfaction of the Director of Public Works and with all reasonable dispatch, and upon completion shall restore the Town Property to the same condition as before the commencement of the work and to the satisfaction of the Director of Public Works of the Town. At the end of the term hereof unless a subsequent agreement is entered into, or upon the earlier termination hereof, the Company shall remove all of its equipment and materials installed by the Company in providing the CATV Service provided the Company shall have six (6) months from the termination of this agreement or the end of the term to sell the equipment and materials failing which it shall arrange for the removal and restoration of Town Property affected thereby (to the same condition as before the installation, reasonable wear and tear excepted, and to the satisfaction of the Town's Director of Public Works) within a further period of six (6) months. If, in the opinion of the Town, the restoration of the highway, street, road allowance, easement or public place is not proceeding with reasonable dispatch, then the Town, upon forty-eight (gg) hours written notice to the Company, may perform the necessary work at the Company's expense. If, however, in the opinion of the Director of Public Works of the Town, an emergency exists, the Town may proceed with the restoration at the Company's expense without any notice to the Company. The Company shall indemnify and save harmless and keep indemnified the Town of and from any and all claims, demands, actions or loss caused to persons or property arising, directly or indirectly, out of, or attributable to the delivery of the CATV Service to the intent that the Town shall not suffer any expense or loss, including legal expenses, arising out of the operation of this agreement excepting such expenses and costs incurred in providing the services agreed to be provided by the Town PROVIDED HOWEVER that the Company's obligation and liability under this Clause t~ shall not extend to any such claims, demands, actions or loss caused directly or indirectly by the gross negligence of the Town, its officers, employees, agents or those with whom it has independently contracted acting pursuant to paragraph g(d) hereof. The Town shall have no right, title, interest or property in the equipment and materials installed or to be installed by the Company in providing the CATV Service. The Company shall on or before execution and delivery hereof, deposit with the Town, a policy, or a certificate of a policy, of liability insurance wherein the Town is named as a co-insured, in a form approved by the Town in the aggregate sum of Five Million Dollars ($5,000,000.00) each occurrence covering the Town for public liability and property damage and to keep such insurance in full force and effect at all times during the term of this agreement. All equipment used in connection with the said CATV Service system shall be placed, maintained, co-ordinated and operated in keeping with industry standards · -3- e 11. 12. 13. 14. 15. 16. (b) (a) (b) (c) (a) (b) The Company shall not interfere in any manner with the use, maintenance and operation of Town services, and in the event that such interference does occur, the Company shaH, upon receiving notice in writing of such interference, resolve the interference within a reasonable time and in a manner satisfactory to the Director of Public Works, acting reasonably. All equipment shall be placed and maintained in accordance with the Canadian Standards Association's "Rules, Requirements and Specifications for the :Joint Use of Poles to Support Supply and Communication Circuits" contained in C.S.A. Standard C. 22.3, No. I (D), as amended from time to time. Except as otherwise provided all equipment of the Company shah be and remain at the risk of the Company and the Company hereby releases the Town of and from any and all claims for damage to such equipment, Nothing in this agreement shall be construed to permit the use of any property other than Town Property. All wires or cable leading from the cables or wires located on the poles of the Picketing Hydro Electric Commission, Ontario Hydro Electric Power Commission of Ontario or Bell Canada, to buildings to be served thereby, shall be in the same vertical plane or within 30 centimetres of such vertical plane, as the service wires to the property belonging to either the Picketing Hydro Electric Commission, Ontario Hydro or Bell Canada, as is the case. The Company shall give prior written notice to the Town of any assignment of title, ownership or rights in the equipment used, operated or maintained pursuant to this agreement. Subject to the provisions of Clause 12(b) hereof, the term of this agreement shall commence as o£ the date hereof and shall end on September 30, 1999. Subject to paragraph # this agreement shall terminate immediately in the event the Company ceases to hold a valid CRTC licence or licences pursuant to the Broadcasting Act of Canada or any other duly constituted authority for the granting of licences to cable television undertakings, authorizing it to carry on its CATV Service in the Town of Pickering. Subject to paragraph # hereof this agreement may be terminated by the Company in the event that the Company ceases to carry on its CATV Service in the Town. In the event of any breach of a covenant herein to be performed by the Company, the Town shall give to the Company written notice of such breach and the Company shall have a period of 60 days after receipt of such notice, within which to cure or rectify such breach: in the event of failure to cure or rectify the breach of covenant, the Town may, in its discretion, subject to paragraph O, terminate this agreement. Nothing in this agreement shall be deemed to grant to the Company exclusive rights to: operate a CATV system within the Town or within the areas thereof now served or hereafter served by the Company; or the use of Town Property. No maintenance or repairs shall be carried out to the Company's equipment in the Town, except by the Company's own staff or employees, or by contractors or sub-contractors who are first approved in writing by the Company. Any agreement heretobefore existing between the Company and the Town and without restricting the generality of the foregoing the Prior Agreement and Present Agreement, are hereby terminated and the parties hereto agree that neither of them has a claim against the other for any payment or in respect of any matter arising under such agreements. Any notice required to be given hereunder shall be deemed to have been sufficiently given if in writing and delivered personally or mailed by prepaid registered mail addressed in the case of: and The Town: The Corporation of the Town of Picketing i7i0 Kingston Road, Picketing, Ontario LIV IC7 Attention: The Director of Public Works The Company: Pickering Cable TV Limited 751 McKay Road, Pickering, Ontario L1W 3E2 Attention: C~neral Manager with a copy to: Unit 33, 705 Progress Avenue, 5carborough, Ontario M1H 2X2 Attention: President or at such other address to which a party hereto shall notify the other in writing. Any notice mailed as aforesaid shall be deemed to have been given five (5) business days following the date on which it was mailed. 17. 18. The Town and the Director of Public Works shall not exercise any discretion herein permitted them in an arbitrary fashion and shall, in making a decision contemplated herein, act and take into account the same criteria as with similar or comparable decisions affecting persons providing similar or comparable utilities and using Town Property. (a) Waivers by any party hereto of its rights, against another party hereto, upon default or otherwise, shall be effective only if in writing and any such waiver shah not be construed as a waiver of any default or other right not specified therein. No release, waiver or indulgence granted by one party hereto to another party, shall in any way affect the rights of the party granting the same against any other party hereto. (b) The terms "herein", "hereby", "hereof", Wnereunder", and similar expressions mean or refer to this agreement, and any amendments. Whenever the context of this agreement so requires, the masculine gender includes the feminine or neuter, singular in number includes the plural, and vice versa. (c) This agreement contains the entire agreement between the parties with respect to the subject matter hereof and shall not be modified in any manner, except as hereinabove provided or by an instrument in writing executed by the parties hereto. (d) This agreement shall be governed by and construed in accordance with the laws of the Province of Ontario. -5- IN WITNESS WHEREOF the parties hereto have hereunto affixed their corporation seals attested to by the hands of their proper officers in that behalf duly authorized. THE CORPORATION OF THE TOWN OF PICKERING Mayor Clerk PICKERING CABLE TV LIMITED peF. c/s per.