8. GLOBILITY COMMUNICATIONS CORPORATION Municipal Access Agreement

Entente d’accÈs aux routes municipales – Globility Communications Corporation

COMMITTEE RECOMMENDATION

That Council approve entering into a Municipal Access Agreement with Globility Communications Corporation as described in this report.

RECOMMANDATION DU COMITÉ

Que le Conseil approuve l’entente d’accès aux routes municipales conclue, telle que décrite dans le présent rapport, entre la Ville d’Ottawa et Globility Communications Corporation.

DOCUMENTATION

1. Deputy City Manager, Planning and Infrastructure report dated 28 February 2012 (ACS2012-ICS-INF-0004).

Report to/Rapport au :

Finance and Economic Development Committee

Comité des finances et du développement économique

and Council / et au Conseil

28 February 2012 / le 28 février 2012

Submitted by/Soumis par : Nancy Schepers, Deputy City Manager; Directrice municipal adjointe, Planning and Infrastructure/ Urbanisme et infrastructures

Contact Person/Personne-ressource : Wayne Newell, General Manager / Directeur Général Infrastructure Services / Services d’infrastructure

613-580-2424 x16002, wayne.newell@ottawa.ca

City Wide/Ward(s)

Ref N°: ACS2012-ICS-INF-0004

SUBJECT:

GLOBILITY COMMUNICATIONS CORPORATION Municipal Access Agreement

OBJET :

Entente d’acces aux routes municipales – Globility Communications Corporation

REPORT RECOMMENDATIONS

That the Finance and Economic Development Committee recommend Council approve entering into a Municipal Access Agreement with Globility Communications Corporation as described in this report.

RecommandationS du rapport

Que le Comité des finances et du développement économique renvoi au Conseil pour son approbation l’entente d’accès aux routes municipales conclue, telle que décrite dans le présent rapport, entre la Ville d’Ottawa et Globility Communications Corporation.

Background

A request has been received by Globility Communications Corporation (Globility) to install a telecommunications plant within the City rights-of-way. Globility is a registered telecommunications provider with the Canadian Radio-Television and Telecommunications Commission (CRTC).

Globility currently does not have a Municipal Access Agreement (MAA) with the City of Ottawa. The purpose of this report is to seek approval to enter into a MAA with Globility that would allow them to install telecommunications equipment within City rights-of-way.

DISCUSSION

Telecommunication and utility companies generally have a statutory right to use municipal streets, but this is subject to the consent of the municipality. The process, terms and conditions for granting Municipal Consent are embodied in a legal document called a Municipal Access Agreement (MAA). In 2001, Council directed staff to negotiate MAAs with telecommunications companies on the basis of the following five right-of-way management principles developed by the Federation of Canadian Municipalities (FCM).

In pursuance of bona fide purposes, municipal governments must have the ability to manage the occupancy and uses of rights-of-way, including the establishment of the number, type and location of facilities, while taking into account applicable technical restraints.
Municipal governments must recover all costs associated with occupancy and use of the rights-of-way by other parties.
Municipal governments must not be responsible for the costs of relocating facilities situated along municipal rights-of-way if relocation is for bona fide municipal purposes.
Municipal governments must not be liable for losses associated with the disruption of services or with damage to property as a result of the usual municipal activities or the activities of other parties along municipal rights-of-way.
Recognizing that rights-of-way have value, municipal governments must receive full compensation for the occupancy and use of municipal rights -of-way by other parties.

Council’s approved policy is that the issuance of road cut permits is subject to a telecommunications company accepting these five principles and agreeing to negotiate an MAA, with one exception. The exception relates to a Decision of the Canadian Radio-Television and Telecommunications Commission (CRTC) and the Supreme Court of Canada and does not allow municipalities to charge a fee in excess of costs.

Recent decisions of the CRTC have provided the industry with guidance on the elements to be included in a model agreement. Based on this information, the City has developed a model MAA. The main elements of the model are outlined in Document 1, and the final agreement with Globility will be based on the model and refined by specific issues relating to the company’s plans and needs.

As part of the MAA, Globility has agreed to pay the City an annual cost recovery fee of $5,000 as compensation for costs incurred by the City due to the installation of its equipment and its presence in City streets. These costs are above and beyond the costs covered by the Road Cut Permit, the costs of software for Circulation of applications and the costs of modifications to the Central Registry Plans maintained by the City, which will be billed to Globility at the time of use or application.

RURAL IMPLICATIONS

At this time Globility is only planning to install telecommunications equipment in the downtown core area of the City.

CONSULTATION

No public consultation has been undertaken regarding this agreement. This agreement is in accordance with the policy approved by Council.

Comments by the Ward Councillor(s)

There are no specific Ward Councillor comments as this is a City-wide issue.

LEGAL IMPLICATIONS

There are no legal impediments to implementing the recommendation in this report.

RISK MANAGEMENT IMPLICATIONS

There are no risk implications.

FINANCIAL IMPLICATIONS

As part of the agreement, Globility will pay the City an annual Municipal Access Agreement fee of $5,000; this revenue will affect the annual operating status of Infrastructure Services.

ACCESSIBILITY IMPACTS

There are no accessibility impacts associated with this report.

Technology Implications

There are no City technology issues associated with this report.

City Strategic Plan

This report aligns with the City Strategic Plan in support of Service Excellence and Economic Prosperity by providing residents and businesses with more options for telecommunications and supporting competition in the telecommunications industry.

SUPPORTING DOCUMENTATION

Document 1 – Municipal Access Agreement – Principle Elements

DISPOSITION

City Clerk and Solicitor Department – Legal Services Branch to finalize negotiations and execution of the Municipal Access Agreement for Globility Communications Corporation in form similar to Document 1.

Document 1

THIS AGREEMENT dated as of ************

BETWEEN:

City of Ottawa

(hereinafter called the “City”)

and

************

(hereinafter called ”**”)

WHEREAS ** operates a Telecommunications system within the Boundaries of the City;

AND WHEREAS ** is regulated by the Canadian Radio-television and Telecommunications Commission (“CRTC”) to operate within the area designated in **'s licence and this area includes all of the land within the Boundaries of the City;

AND WHEREAS ** wishes to install, operate and maintain Equipment in, on, under, over, along and across Service Corridors within the Boundaries of the City;

AND WHEREAS the City is willing to permit the use of Service Corridors where in its judgment, such use will not interfere with its own service requirements and use of the Service Corridors or any rights previously conferred or hereafter conferred by the City by contract or otherwise to others not party to this Agreement to use any of the Service Corridors;

AND WHEREAS on the 1^st day of January, 2001, by Provincial legislation, The Regional Municipality of Ottawa-Carleton and The Corporation of the City of Ottawa and all other municipalities within the boundaries of The Regional Municipality of Ottawa-Carleton were dissolved and replaced by the new City of Ottawa, which by that same legislation assumes all the obligations of the former municipalities;

NOW THEREFORE in consideration of the mutual terms, conditions and covenants contained herein,

THE PARTIES AGREE AS FOLLOWS:

1. DEFINITIONS

1.1 In this Agreement, the following words and phrases shall the have the following meanings:

“Adjustment” means a minor shifting or movement of a manhole or hand hole lid or cover or pedestal box. Adjustments may be requested to allow for road resurfacing, to address vehicular or pedestrian hazards, or to allow for temporary construction access.

”Affiliate” shall have the meaning given to affiliate by the Canada Business Corporations Act and includes, without limitation, a parent company;

“Agreement” means this instrument;

“Attach” or “Attachment” means the use of, or connection to, the Equipment of ** by a Third Party;

“Boundaries” means the existing municipal boundaries of the City;

”Business Day” means any day that is not a Saturday, Sunday or a statutory holiday in the provinces of Ontario and Québec;

“City” means the Corporation of the City of Ottawa and the geographic area which comprises the City of Ottawa;

”Contractors” means contractors, subcontractors, workers, suppliers and personnel;

“Deputy City Manager” means the Deputy City Manager of the City’s Infrastructure Services and Community Sustainability Portfolio with responsibilities for Service Corridors within the City, or the person designated by him or her or such other persons as may from time to time be designated by City Council.

“Effective Date” means the latest date on which this Agreement is executed by one of the parties;

”Employee” means:

(i) with respect to **, any official, officer, employee, Contractor, or authorized agent of **,

(ii) with respect to the City, any official, officer, employee, authorized agent or Contractor of the City but specifically excludes ** and any Employee of **; and

(iii) with respect to the Contractors of the City or **, any officer, employee or agent of the Contractors;

”Equipment” means **’s wires, copper wires and cables, fibre-optic cables, ducts, conduits, manholes and other accessories, structures and equipment located within the Boundaries;

”Hazardous Substance” includes, but is not limited to, electromagnetic or other radiation, petroleum products and byproducts, 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;

”Person” means any individual, corporation, partnership, association, joint venture or organization of any kind and the lawful trustee, successor, assignee, transferee or personal representative;

”Prime Rate” means the annual rate of interest established and reported by The Toronto-Dominion Bank from time to time as its “prime rate” and used as the base or reference rate of interest for the determination of interest rates that The Toronto-Dominion Bank charges to its customers for Canadian dollar loans made in Canada;

”Private Entity” means any person or entity other than a Public Body;

”Public Body” means any governmental body or authority including, without limiting the general scope of this definition and by way of example only, the City, the CRTC, the provincial government, the federal government and all Crown and municipal corporations, agencies, districts and boards controlled or constituted by a legislative body or council;

”Service Corridor” means highways, streets, road allowances, lanes, bridges and viaducts vested in the City;

”Taxes” means all taxes rates, duties, levies, fees, charges, sewer levies, local improvement rates and assessments whatsoever, imposed, assessed, levied or charged now or in the future by any municipal, provincial, federal, parliamentary or other governmental body, corporate authority, agency or commission (including, without limitation, school boards and utility commissions), in connection with the Equipment including, without limitation, any such taxes which are levied in substitution or in lieu of or in addition to any of the foregoing;

”Telecommunications” or ”telecommunications” has the same meaning as under Section 2 of the Telecommunications Act;

”Term” is as defined in Section 2 of this Agreement;

”Third Party” means any individual, corporation, partnership, association, joint venture or organization of any kind and the lawful trustee, successor, assignee, transferee or personal representative thereof that attaches to **’s Equipment under an agreement with ** but does not include direct users of **’s services;

”Work” means any installation or other alteration of Equipment in, on, under, over, along or across the Service Corridors.

2. TERM AND TERMINATION

2.1 This Agreement shall commence upon the Effective Date and shall continue for five (5) years from such Effective Date, which hereinafter is referred to as the “Initial Term”.

2.2 This Agreement shall automatically renew for successive one (1) year periods on the same terms and conditions, each year of renewal hereinafter referred to as a “Renewal Term”, unless either party gives written notice of cancellation or that it wishes to renegotiate the Agreement (the “Notice”).

2.3 The Notice shall be given not less that six (6) months prior to the expiration of the Initial Term or any subsequent Renewal Term and shall indicate, unless in the case of cancellation, the particular section or sections of the Agreement to be renegotiated, and the reasons for the proposed renegotiation.

2.4 In the case of a cancellation Notice this Agreement shall terminate and, subject to the following subsection 2.7, all rights and obligations hereunder shall come to an end.

2.5 On receipt of a renegotiation Notice, the parties will negotiate the identified section or sections in good faith and on similar terms and conditions as those in this Agreement.

2.6 The parties shall have ninety (90) days from the receipt of the renegotiation Notice, or such other period of time as may be agreed upon, to negotiate and agree upon the new term or terms, failing which either party may refer the matter or matters to arbitration in accordance with Section 17 of this Agreement.

2.7 Provided the parties are in good faith negotiations or in arbitration or taking positive steps to renew the Agreement, then notwithstanding the expiry or termination of this Agreement, the liabilities and obligations of the City and **, and their Contractors and agents under this Agreement, including all costs, fees and payments shall continue and remain in full force and effect with respect to the Service Corridors used by ** until all **’s Equipment is removed from the Service Corridors or becomes the property of the City pursuant to subsection 14.4.

4.2 Prior to commencing Work of any kind in, on, under, over, along or across a Service Corridor including the installation, maintenance and removal of its Equipment, ** shall obtain the prior written approval for such work from the Deputy City Manager. The Deputy City Manager may establish, within a reasonable time, the terms and conditions under which such work may be undertaken by ** and as a condition of such approval, the City may, at its sole discretion, require that ** submit detailed engineering plans to the Deputy City Manager with respect to the work to be conducted in a Service Corridor.

4.3 ** undertakes and agrees with the City, that it shall, at the request of the Deputy City Manager, from time to time, submit such information as may reasonably be required by the Deputy City Manager for the purpose of joint utility co-ordination between ** and other users of the Service Corridors, to indicate the scope and proposed locations of planned work contemplated by ** and the areas of the City in which it plans to undertake construction from time to time. The City agrees that it shall, at the reasonable request of **, provide information to ** on its planned Service Corridor work activities.

4.4 Section 4.3 does not apply where ** carries out routine maintenance, field testing and customer service connections where ** uses existing Equipment and no disruption or change to the Service Corridor. Furthermore, in the event that such work will result in a disruption of traffic, ** will comply with the notification procedure in the by-laws.

4.5 On or before January 31^st of each year, at the request of the City of Ottawa, ** shall provide, a report to the City listing the Equipment installed by ** or on its behalf in the Service Corridors in the twelve months immediately preceding the report.

5. EXCESS CAPACITY

5.1 At the option of the City, to be exercised at the time of circulation of the Work, ** agrees to install additional ducts and manholes on behalf of the City at the same time as the Work is installed providing the requested work does not negatively impact on the ** project scope, schedule or overall project budget. Should the City exercise this option, all related supplemental costs of the additional ducts and manholes to accommodate these ducts will be the sole responsibility of the City and be based on the incremental costs incurred by ** in installing the additional ducts. The additional ducts and manholes will become the property of the City which, if made available for use by Third Party telecommunications carriers and distribution undertakings, shall be at competitive market rates.

6. MANNER OF WORK

6.1 All Work conducted by ** in a Service Corridor including installation, maintenance, relocation and removal of its Equipment, shall be subject to the following conditions:

(a) all Work shall be conducted and completed to the satisfaction of the Deputy City Manager in accordance with the City’s standards and regulations. ** undertakes and agrees that it will construct, operate and maintain its Equipment in accordance with good engineering practice and applicable government standards;

6.6 ** shall, within two (2) months of completing the installation of any Equipment, provide two copies of "as built" drawings to the City sufficient to accurately establish the location, elevation and distance of the Equipment in a manner consistent with the level of detail and accuracy provided to the City by similar utilities. One copy of the drawings shall be in an electronic format acceptable to the Deputy City Manager and requested of all utilities using the Service Corridors and one shall be a hard copy drawing. The costs of incorporating these “as built” drawings into the City’s utility plan registry are part of the Central Registry budget, referenced in section 6.8 below.

6.7 ** shall, at no cost to the City, provide locations of its Equipment within forty-eight (48) hours of receiving a request by the City. However, in the case of an emergency, ** shall provide the locations of its Equipment as soon as practicable upon receiving a request from the City.

6.8 ** agrees to apply for and maintain membership in the City’s public utilities co-ordinating committee and to share the reasonable costs related to the administration of the committee and operation of any utility plan registry maintained in connection with the work of this committee. **s share of these costs shall be in accordance with the cost sharing arrangement established by the Committee from time to time. Additional charges for project specific revisions requested or caused by ** will be charged at the hourly rate approved by the Committee.

6.9 ** shall provide to the Deputy City Manager a list of 24 hour emergency personnel for ** and shall ensure that this list is always current.

6.10 If and when a “one-call damage prevention system”, which among other things provides a single telephone number for locating all underground utility equipment regardless of ownership, is established within the City, ** will participate in that system.

6.11 In the event the City closes part or all of a Service Corridor in which **’s Equipment is located so that part or all of the Service Corridor loses its status as a public road allowance, ** shall, if requested to do so by the City, and within ninety (90) days of receipt of written notice from the City, at the City’s discretion, either:

(a) remove its Equipment from that part of the Service Corridor which is closed, the cost of which will be determined in accordance with the provisions of section 8 of this Agreement; or

(b) purchase from the City an easement for its Equipment, the cost thereof to be negotiated by the parties in good faith.

6.12 In the event the City requires removal of the Equipment and it is not removed within the ninety (90) days, the City may remove it, the cost of which will be determined in accordance with section 8, without any liability to **. In the event the City requires removal of the Equipment as stated above, the City shall use its best efforts in proposing to ** any available alternative routes.

7.0 ENVIRONMENTAL RESPONSIBILITY

7.1 The City is not responsible, either directly or indirectly, for any damage to property or injury to a Person, including death, arising from the escape, discharge or release of any Hazardous Substance from its Service Corridors, unless such discharge is caused by the gross negligence of the City.

7.2 ** agrees to assume all environmental liabilities relating to its use of the Service Corridors including but not limited to any liability for clean-up of any Hazardous Substance on or under the Service Corridors which result from:

(a) the operations of ** in, on, under, along or across the Service Corridors, or

(b) any products or goods brought in, on, under, along, or across the Service Corridor by **, its agents or Employees or by any person with the express or implied consent of **.

8 RELOCATION AND ADJUSTMENT OF EQUIPMENT

8.1 Upon receipt of a minimum of forty-five (45) days written notice from the City, that **’s Equipment must be relocated or adjusted for bona fide municipal reasons, ** shall commence and diligently work to relocate or adjust its Equipment within a Service Corridor.

8.2 Where the City has requested the relocation of the Equipment pursuant to subsection 8.1, responsibility for, and payment of, the cost of the relocation shall be as follows:

8.2.1 For Equipment installed prior to the Effective Date where it is determined that no consent was granted by the City to install the Equipment or where no inspection was carried out by the City on such Equipment (and the parties have both used their commercially reasonable efforts to locate records of such permission or inspection), ** shall be responsible for one hundred percent (100%) of the associated Relocation Costs.

8.2.2 subject to subsections Error! Reference source not found., Error! Reference source not found. and Error! Reference source not found., for equipment installed with the prior written consent of the City, up to 10 years prior to the Effective Date of this Agreement the City will be responsible to pay for Relocation Costs based on the duration of time between the date the Municipal Consent ( MC) for the Equipment was issued (“MC Approval Date”) and the date of the Relocation Request as follows:

Year Relocation Request is made following MC Approval Date	Percentage or Relocation Costs paid by the City
Year 1	100%
Year 2	100%
Year 3	100%
Year 4	90%
Year 5	80%
Year 6	65%
Year 7	50%
Year 8	35%
Year 9	20%
Year 10	10%

** will be responsible for all of the remaining costs to relocate its Equipment.

8.2.3 If the Relocation Request is dated after the end of the 10th year following the MC Approval Date for such Equipment, ** will be solely responsible for and pay all the Relocation Costs for that Equipment.

8.3 Where at any time the City requests an Adjustment pursuant to subsection 8.1, ** shall be responsible for, and shall pay for, 100% of the cost of that Adjustment.

8.4 In an emergency where public health and safety are affected, the City, after having first reasonably attempted to contact ** may take any measures deemed necessary for public safety with respect to the relocation or Adjustment of the Equipment, the cost of which will be in accordance with section 8. The City shall not be liable for any damage of any nature caused to ** by reason of such relocation or Adjustment and ** hereby indemnifies and saves harmless the City therefrom, unless any such damage is caused by the gross negligence of the City.

8.5 If ** fails to complete the relocation or Adjustment of the Equipment in accordance with subsection 8.1 or fails to repair the Service Corridors or do anything else required of ** pursuant to this Agreement in a timely and expeditious manner to the satisfaction of the Deputy City Manager, the City may, but is not obligated to, at its option, complete such relocation or Adjustment or repair, the cost of which will be in accordance with this section 8, plus an overhead equal to fifteen (15%) per cent of such cost and in default of payment thereof, the amount of such cost with interest at the rate of two per cent (2%) per annum above the Prime Rate shall be due and payable by ** upon receipt by ** of an invoice setting out such cost and interest. The City shall not be liable for any damage of any nature and kind caused to ** and its Equipment by reason of the work undertaken by the City pursuant to this paragraph except damage caused by the gross negligence of the City, and ** hereby undertakes to indemnify and save harmless the City therefrom.

8.6 The City will make a good faith effort to provide alternative suggestions for re-routing the Equipment affected by the relocation or Adjustment to assist ** in its efforts to facilitate the uninterrupted provisions of services to its customers.

9. LIABILITY AND INDEMNIFICATION

12.1 ** covenants and agrees to pay to the City upon execution of this Agreement an annual amount to cover the costs incurred by the City which arise from **’s installation of its Equipment, its presence in the Service Corridors and the costs of approval and administration of the Agreement. This amount shall be paid regardless of whether any Equipment is installed. This amount shall be five thousand ($5,000) dollars per annum plus applicable federal Goods and Services Tax and any other applicable tax.

12.2 For greater certainty, the amount identified above and all other amounts payable by virtue only of this Agreement are in addition to, and not in lieu of, all amounts generally applicable to Private Entities which may be lawfully imposed on ** by a Public body including permit fees and charges, and realty and business and gross receipts taxes. In the event the Service Corridors are assessed in the future as a result of **’s use of the Service Corridors, ** agrees to indemnify the City for any taxes due and payable by the City as a result of this assessment.

12.3 For greater certainty, ** is not liable to pay any encroachment fees under the City’s Encroachment By-law for installations permitted under this Agreement.

12.4 ** or the City will pay simple interest at the Prime Rate plus two percent (2%) per annum on all amounts required to be paid under this Agreement, from the due date until payment in full, both before and after judgment.

12.5 All amounts payable under this Agreement shall be payable in Canadian currency.

12. 6 Except as otherwise provided in this Agreement, all amounts set out in this Agreement are exclusive of Taxes. All applicable goods and services taxes, provincial sales taxes and any and all other value added, sales or other transaction taxes attributable to the licence granted by this Agreement or the fees paid by ** pursuant to this Agreement are recoverable under this Agreement in the same manner as the amounts on which they are based.

13. LEGISLATIVE CHANGE

13.1 If at any time subsequent to the parties entering into this Agreement:

(a) the provincial or federal government, or regulatory authority, board or body, including the CRTC, acting within its jurisdiction, enacts or repeals any legislation or regulation, which pertains to **’s use of the Service Corridors or to the subject matter of this Agreement; or

(b) there is rendered any decision or order of a court, tribunal, regulatory authority or board or body including the CRTC, which is not the subject of an appeal, and which pertains to **’s use of the Service Corridors or to the subject matter of this Agreement;

then either party may notify the other of its intention to require the other party to enter into good faith negotiations to amend this Agreement with retroactive effects as of the date of the events described in the above paragraphs (a) and (b), to conform to such legislation, order or decision, or to enter into a new agreement reflecting such legislative or regulatory action or court or tribunal order or decision, as the case may be, within sixty (60) days of the written notice (the Notice”) from the notifying party. Any newly permitted charges or fees pursuant to such new or amended agreement will take effect from the date upon which the Notice expires.

13.2 If the parties are unable to renegotiate the terms and conditions of this Agreement within the sixty (60) days provided under subsection 13.1, or if the negotiations are not conducted in good faith then unresolved matters may, on thirty (30) days written notice from the requesting party, be referred by that party to arbitration for resolution, in accordance with Section 17 of this Agreement.

13.3 If an amendment or new agreement is not reached within ninety (90) days from the date on which the Notice was received, either party may terminate this Agreement without further notice and both parties shall fulfill all their respective obligations thereafter in accordance with this Agreement.

14. TERMINATION FOR DEFAULT OR ABANDONMENT

14.1 If the City defaults in any of its obligations under this Agreement and fails to correct the default within sixty (60) days of written notice from ** or fails to commence correcting the default within sixty (60) days of written notice from ** and fails to complete the correction within a reasonable time after the written notice is received, ** may, at its option, and by written notice to the City take any one or all of the following actions:

(a) terminate this Agreement.

(b) perform any obligation deemed necessary at the City’s reasonable expense.

(c) take action for an order of specific performance directing the City to fulfill its obligations under this Agreement, and, if successful, all legal costs related to such Court action shall be paid by the City to ** on a solicitor/client basis.

14.2 If ** defaults in any of its obligations under this Agreement and fails to correct the default within sixty (60) days of written notice from the City or fails to commence correcting the default within sixty (60) days of written notice from the City and fails to complete the correction within a reasonable time after the written notice is received, the City may, at its option, by written notice to ** take any one or all of the following actions:

(a) Terminate this Agreement in the event of a default identified in subsection 14.3.

(b) Perform the obligation at **’s reasonable expense.

(d) Take action to recover any amounts not paid by ** pursuant to this Agreement or for an order of specific performance directing ** to fulfill its obligations under this Agreement, and if successful, all legal costs related to any such court action shall be paid by ** to the City on a solicitor/client basis.

14.3 The following events shall constitute an event of default on the part of ** permitting the termination of this Agreement pursuant to paragraph 14.2:

(a) if ** defaults in the payment of any amounts payable pursuant to this Agreement; or

(b) if there is filed by or against ** in any court an uncontested petition in bankruptcy or insolvency or for reorganization or for the appointment of a liquidator of **’s property, or if ** makes an assignment or petitions for or enters into an arrangement for the benefit of creditors and any such petition remains undismissed after thirty (30) days or stayed on appeal.

14.4 In the event of termination of this Agreement pursuant to subsection 14.1 or 14.2, or in the event of abandonment pursuant to subsection 14.6, the equipment shall either:

(a) be removed from the Service Corridor by ** within the time set out in the termination notice (not less then ninety (90) days), or in the case of abandonment not less than ninety (90) days from the date on which the City receives **’s notice given pursuant to subsection 14.6, and the Service Corridor restored to its pre-removal condition. Failing removal and restoration by ** in accordance with this subsection the City may complete the removal and restoration, charge all costs to **, and ownership of the conduits and manholes will vest in the City without compensation; or

(b) at **’s request and with the approval of the Deputy City Manager, remain in the Service Corridors in which case it will be surrendered by ** and become the absolute property of the City.

14.5 Notwithstanding paragraph 14.4(a) where the Deputy City Manager determines that the conduits, manholes, hand holes, vaults and other Equipment cannot be removed by ** without significantly disturbing the Service Corridor, such Equipment shall remain in the Service Corridors and will be surrendered by ** and will become the absolute property of the City.

14.6 Whenever ** ceases to use and will not in future use (“abandons”) any portion of the Equipment in, on, under, over, along or across a Service Corridor, it shall within thirty (30) days of such abandonment file with the City a statement in writing giving in detail the location of the equipment that has been abandoned.

17.2 Whenever the Municipal Arbitrations Act, R.S.O. 1990, c. M.48 shall extend and apply to the City, any reference to arbitration pursuant to the provisions of subsection 19.1 shall be to the Official Arbitrator appointed under the Act and shall be governed by the provisions of the Act. At any other time, the procedure upon an arbitration pursuant to the provisions of subsection 17.1 shall be as follows:

(a) Within twenty (20) days after the written request of either of the parties hereto for arbitration, each of them shall appoint one arbitrator and the two so appointed shall, within twenty (20) days after the expiration of the twenty day period select a third. In case either of the parties hereto fails to name an arbitrator within twenty (20) days after the written request for arbitration, the arbitrator appointed shall be the only arbitrator. In case the two arbitrators so appointed are unable to agree on a third arbitrator within twenty (20) days after the expiration of the first twenty day period mentioned above, application shall be made as soon as reasonably possible to any Judge of the Superior Court of Justice for the appointment of a third arbitrator. The arbitrator or arbitrators so appointed shall have all the powers accorded to arbitrators by the Arbitration Act, S.O. 1991, c. A.17 as from time to time amended, or any Act in substitution therefor. Either party may appeal an arbitration award to the courts of competent jurisdiction on a question of law; for an interim measure of protection; or for any order for relief which the arbitrators do not have the jurisdiction to provide.

(b) Notwithstanding anything to the contrary, the arbitrator or arbitrators shall render a motivated decision within ninety (90) days of the initial appointment.

18. NOTICE

18.1 Any notice required or permitted to be given hereunder or any tender or delivery of documents may be sufficiently given by personal delivery or, if other than delivery of an original document, by facsimile transmission to the City at the following address in which case such notice or document shall be deemed received the day it was sent:

City of Ottawa

110 Laurier Avenue West

Ottawa, Ontario

K1P 1J1

Attention: City Clerk

Fax Number: (613) 560-1380

and to ** at the following address:

Any notice may also be given by prepaid registered mail and such notice shall be effective five (5) days following the date of mailing, except in the event that there shall be a disruption in postal services at the date of mailing, in which case notice shall be effective by personal delivery or a facsimile transmission as stated above.

19. Assignment

19.1 This Agreement may be transferred or assigned by either the City or ** in its entirety, to a single transferee or assignee with the others prior consent in writing, which consent shall not be unreasonably withheld or delayed. Notwithstanding the above, **, upon first having given notice to the City of the transfer or assignment may transfer or assign all or part of this Agreement to an Affiliate of **.

19.2 Any sublicense, grantee, transferee or assignee shall be bound by the provisions of this Agreement as they relate to the interest sublicensed, granted, transferred or assigned and the assigning party shall provide a true copy of any transfer or assignment to the other immediately upon execution of same.

19.3 ** may assign this Agreement as security without the consent of the City to any person directly or indirectly providing financing to ** but the assignment shall not release ** from its obligations and liabilities under this Agreement.

20. GENERAL

20.1 Nothing in this Agreement shall be construed as affecting any rights or otherwise of others not a party to this Agreement to use any service corridor in accordance with the City’s legal authority.

20.2 This Agreement forms the entire agreement between the City and ** and there are no conditions, warranties or representations, express or implied, with respect to this Agreement or affecting the rights of the parties other than as are specifically contained in this Agreement. No collateral agreement shall be binding upon the parties unless it is endorsed in writing by the duly authorized representatives of the parties.

20.3 This Agreement shall enure to the benefit of and be binding upon the City and ** and their successors and permitted assigns.

20.4 Any term, condition or provision of this Agreement, which is or shall be deemed to be void, prohibited or unenforceable, shall be severable and be ineffective to the extent of such voidance, prohibition or unenforceability without in any way invalidating the remaining terms, conditions or provisions of the Agreement; and any such voidance, prohibition or unenforceability shall not invalidate or render unenforceable, any other term, condition or provision.

20.5 This Agreement creates contractual rights only between the City and ** and not an interest in the Service Corridors and ** covenants and agrees with the City that ** shall desist always from any registration of this Agreement or of any right howsoever arising under it.

20.6 The failure or delay of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, or to exercise any rights under same shall not constitute a waiver or relinquishment of any such terms, conditions or rights. The mere passage of time or the giving of notices or the execution of revisions, modifications or extensions to this Agreement shall not affect other terms, conditions or rights in and under this Agreement unless expressly stated.

20.7 Modification of this Agreement may be made by mutual consent of the parties but no modification or claimed waiver of any provision shall be valid unless in writing and signed by an authorized representative of the party against which such modification or waiver is sought to be enforced.

20.8 Nothing contained in this Agreement shall be construed to create an agency, partnership or joint venture relationship between the parties and the parties shall perform all their obligations under this Agreement as independent contractors.

20.9 If there is any conflict between the terms of this Agreement and the City’s Road Cut By-law being By-law Number 2001-349 as amended from time to time or any successor by-law, the parties agree that the by-law will prevail.

20.10 The insertion of headings in this Agreement is for convenience only and shall not affect the interpretation.

20.11 Words importing the singular number shall include the plural and vice versa. Words importing the neuter gender shall include the masculine and feminine genders, and words importing person shall include firms and corporations and vice versa.

20.12 Time shall be of the essence in this Agreement.

20.13This Agreement shall be governed by and interpreted in accordance with the laws in force in the Province of Ontario and the laws of Canada which may be applicable to a party in the Province of Ontario.

20.14 All obligations of ** or the City which by their nature require performance or fulfilment following the expiry or termination of this Agreement survive the expiry or termination of this Agreement.

21. TERMINATION OF EXISTING AGREEMENTS

21.1 The Agreements dated October 3, 2000 and January 17, 2001 between ** and The Regional Municipality of Ottawa-Carleton and The Corporation of the City of Ottawa respectively are terminated as of the Effective Date of this Agreement.

IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed by their duly authorized signing officers.

SIGNED AND DELIVERED )

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) I have authority to bind the Corporation.

) CITY OF OTTAWA

Approved for Execution

City Solicitor

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Mayor

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