June 25, 1998
To:Corporate Services Committee
From:Commissioner of Corporate Services
Subject:Proposed Installation of a Pole, Antenna and Monitoring Equipment at the North
East Corner of Bayview Avenue and Post Road
(Ward 9 - North York Centre South)
Purpose:
To enter into a license agreement with Rogers Cantel Inc., for a wireless installation as per
the attached location and site maps.
Funding Sources, Financial Implications and Impact Statement:
This license will generate revenue of approximately $16,364.00 net, for the initial three year
term including a one time fee of $4,000.00 for landscaping.
Recommendations:
It is recommended that:
(1)the City of Toronto enter into a three year License Agreement with Rogers Cantel Inc. on
the terms and conditions outlined in this report and in a form and content acceptable to the
City Solicitor; and
(2)the appropriate City of Toronto officials be authorized and directed to take the necessary
action to give effect thereto.
Council Reference/Background/History:
Cantel is updating their existing wireless network and in this regard, has identified a portion
of City of Toronto Road Allowance at the north east corner of Bayview Avenue and Post
Road as a potential site.
Comments and/or Discussion and/or Justification:
Negotiations were held with Mr. Scott Metcalfe of Rogers Cantel Inc. and an agreement
was reached on the following terms and conditions:
(1)License Location:
Within the City of Toronto Road Allowance at the north east corner of Bayview Avenue
and Post Road, requiring an area of approximately 10 square metres, as shown on Cantel
drawing 8CN03027-SLD.
(2)License Term:
Three (3) years from the Commencement Date.
(3)Commencement Date:
First day of the month following the approval of the license by the City of Toronto Council
and the execution of a formal license agreement.
(4)Option to Extend:
Provided Cantel is not in default, Cantel shall have two options to extend for a 3-year term
each, subject to the same terms and conditions, save and except the rent which shall be
negotiated by both parties, six (6) months prior to the expiry date.
The Commissioner of Works and Emergency Services, Transportation Division,
(hereinafter called the Commissioner) shall, after the initial three year term with six months
written notice to Cantel, have the sole discretion to terminate this license and Cantel shall
remove its equipment and restore the property to the satisfaction of the Commissioner.
(5)License Fee:
(a)An annual fee of $4,000.00, net, plus an annual escalation of 3 per cent. for the right to
install up to two antennas and one (1) microwave dish no larger than two feet in diameter
and/or ancillary monitoring equipment for wireless communications at the approved location
as shown illustrated on Cantel site layout drawing 8CN03027. The Licensee, at its sole
expense, shall be responsible for all applicable taxes, and any costs related thereto. The
payment of the annual fee shall commence on the Commencement Date of the license
agreement; and
(b)A one time payment equivalent to one year's rent of $4,000.00 to allow for surrounding
landscaping mitigation.
(6)Use:
The installation of the poles, antennas and/or related monitoring equipment are to be used to
enhance wireless communication coverage of Cantel's wireless telecommunication services
along the traffic corridor, save and except any video and/or television transmission,
including pay T.V.
(7)Non-exclusive right:
Any right granted to the licensee to install such antennas and related equipment will be
non-exclusive, and shall not preclude the City of Toronto from granting similar rights to
other parties. Should, at any time, the signals of a subsequent wireless licensed party
interfere with those of Cantel, the subsequent licensed party shall suspend its transmission
and both parties shall use its best effort, acting reasonably, to resolve the problem in a timely
fashion. In the event the problem cannot be corrected within three (3) months, the license of
the subsequent licensed party will then be terminated for the respective location(s).
(8)Other Costs:
The Licensee shall be responsible, at its sole expense, for all initial installation/construction
costs plus all costs of repair, maintenance, utilities and any operating costs, together with
any costs incurred directly or indirectly related to the licensee's equipment and/or operation,
as invoiced by the City of Toronto, acting reasonably. The Licensee will arrange for its own
Hydro supply that is separate from any Hydro supplied to any City of Toronto
Transportation Division facility.
(9)Insurance:
The Licensee, at its sole expense, shall obtain adequate insurance of all types in an amount
and form satisfactory to the City Solicitor and/or Financial Officer and Treasurer, with the
City of Toronto shown as additional insured and with Cross Liability and Waiver of
Subrogation clauses.
(10)Indemnities:
(a)The Licensee shall, at all times, indemnify and save harmless the City of Toronto from
and against any and all manner of claims, demand, losses, costs, charges, actions and other
proceedings whatsoever (including those under or in connection with the Worker's
Compensation Act or any successor legislation) made or brought against, suffered by or
imposed on the Licensor or its property in respect of any damage or injury (including fatal
injury) to any person or property (including without restriction, employees, agents and
property of the Licensor or of the Licensee) directly or indirectly arising out of, resulting
from or sustained as a result of the Licensee's occupation or use of, or any operation in
connection with, the licensed area or any wiring, devices, equipment, fixture or chattels
thereon; and
(b)The Licensee shall at all times indemnify and save harmless the Licensor from and
against any and all claims, demands, losses, costs, charges, actions and other proceedings
whatsoever under the Construction Lien Act, 1983, as amended from time to time, or any
successor legislation in connection with any work done for the Licensee at or on the licensed
area, and shall promptly see to the removal from the registered title to the licensed area, of
every claim for lien and certificate of action having to do with such work.
(11)Licensee's Improvement:
(a)The Licensee shall, at its sole expense, be responsible to install all necessary equipment
for its operation, including but not limited to all costs incurred by the City of Toronto. Prior
to the commencement of work, the Licensee shall, at its sole expense, submit detailed plans
and specifications of all installation and/or construction and the exact location within the site
area for the written approval of the Commissioner. The Licensee shall not commence any
work and/or operation without first obtaining all necessary permits/approvals from all
appropriate authorities, and shall save the City of Toronto harmless from all appropriate
authorities, and shall save the City of Toronto harmless from any liability or cost as a result
of the Licensee's failure to so comply. Upon the expiry of the license or any renewal thereof,
the licensee shall, at its expense, remove all its equipment, repair all damages, and restore
the licensed area, all to the reasonable satisfaction of the Commissioner, except normal wear
and tear. In any event, the Licensee, shall not commence any work prior to the execution of
the license. In the event that the installation of the Licensee's equipment requires any land
beyond City of Toronto road allowance, the Licensee shall, at its sole expense, be
responsible to make such arrangement(s);
(b)all Cantel antennas, antenna supports, exposed conduits, exposed lines, microwave and
monopole are to be painted flat black; and
(c)the construction of the underground conduits to the monopole and hydro connection
must be staked and supervised by a City of Toronto arborist if within three metres of an
existing tree.
(12)Maintenance:
(a)The Licensee shall, at its expense, repair, replace and maintain its own equipment,
including any costs incurred by the City of Toronto;
(b)the Licensee shall, at its expense, be responsible for any repair and/or replacement of
any damage to City of Toronto's equipment associated with the installation and/or its
operation;
(c)the Licensee shall obtain the necessary permit approval from the Commissioner prior to
any work commencing and be responsible for any cost incurred by the City of Toronto;
(d)in the event that Cantel's equipment and/or its operation interfere with any existing
and/or future City of Toronto equipment, the Commissioner may elect to have Cantel
suspend its transmission until Cantel, at its sole expense, rectifies the situation to the sole
and unfettered satisfaction of the Commissioner, failing which, the Commissioner may, at its
sole discretion, require Cantel to remove the offending piece of equipment or all of the
equipment, if necessary until such time that the problem may be rectified to the sole
satisfaction of the Commissioner. Should Cantel not be able to rectify the problem, they will
have the sole right to terminate the terms and conditions of the License Agreement as it
relates to the specific Licensed Property upon thirty (30) days written notice to the
Commissioner, and any prepaid fees shall be refunded pro rata to the date of termination;
(e)in the event that the Licensee's equipment becomes a suspected source of interference to
any existing and/or future City of Toronto equipment and operation, the Licensee shall
provide its full co-operation with City of Toronto in determining the source. If the source of
interference is caused by the Licensee's equipment, the Licensor may take all action in
accordance to subclause (iv) herein;
(f)all City of Toronto Transportation Division's maintenance/access will take precedence
over the Licensee's repair; and
(g)in the event that any or all of the licensed location(s) is required for road maintenance
and/or construction, the Commissioner, upon giving six months' written notice, at its sole
discretion, may relocate, if possible, the respective location(s), and Cantel shall be
responsible, at its sole expense, for all costs of relocation(s); failing to find any suitable
relocation(s) within six months of the notice, at the sole discretion of the Commissioner,
such licensed location(s) shall be deemed terminated immediately and Cantel shall, at its
expense, remove all its equipment thereof expeditiously.
(13)During the term of the license, renewal or option to extend thereof, the Licensee, at its
sole expense, shall be responsible for compliance with all current Municipal, Provincial and
Federal laws, by-laws, rules, building code(s) and regulations and shall obtain all necessary
permits and licenses that may be required for the use of the licensed property and its
operation and shall save the Licensor harmless from any liability or cost suffered by the
Licensee or the Licensor as a result of the Licensee's failure to so comply. At the request of
the Licensor, the Licensee shall be required to submit proof of such compliances. More
specifically, the Licensee shall not commence work or operation without receipt of permits,
licenses or approvals from proper authorities.
(14)The Licensee shall not be permitted to install, erect any fence(s), sign(s) structure(s)
and/or fixture(s) on the licensed property without prior written approval of the
Commissioner and/or Commissioner of Corporate Services.
(15)The Licensee shall not make any changes in surfacing, grading, landscaping to the
licensed area or remove tree(s) without the prior written approval of the Commissioner
and/or Commissioner of Corporate Services.
(16)The Licensee shall not be permitted to store or use any hazardous materials, or conduct
any act which may cause soil contamination.
(17)The Licensee shall protect all public works' services and/or utilities easement(s) that
may encumber the property, and shall be liable for any damage to such by its action(s) or
omission(s).
(18)The Licensee shall, at its expense, keep the licensed area in a clean and well-ordered
condition, and not to permit any rubbish, refuse, debris or other objectionable material to be
stored, or to accumulate, thereon.
(19)The Licensee shall ensure that nothing is done or kept at or on the Licensed area which
is or may be a nuisance, or which causes disturbance, damage to or interference with normal
usage of any adjoining property.
(20)The Licensee, shall not install any equipment or carry on any operation at the licensed
area in such way as to increase the insurance risk. The construction of this Microcell shall
not begin until all parties have executed the lease agreement.
(21)The Licensee shall not sublet or assign without the written consent from the Licensor;
such consent may be arbitrary withheld. Notwithstanding the foregoing, Cantel may, upon
given notice to City of Toronto, assign sublet or license to a parent, subsidiary or affiliated
Corporation provided the purpose and use remain the same.
(22)In the event the License is not executed by the Licensee within 6 months from the date
of City of Toronto Council's approval, this agreement, at the Licensor's sole option, may
become null and void.
(23)The City of Toronto will not pay any real estate commissions associated with this
transaction. Both parties warrant that there are no commissions due and payable under this
agreement.
(24)All documentation shall be in Licensor's standard form and notwithstanding any terms
and condition contained or not contained in this proposal, shall be in a form and content
including administrative costs, mutually satisfactory to the City Solicitor.
Compliance with the Federation of Canadian Municipalities (FCM) Model Agreement:
The FCM has established a Model Agreement within which is contained five principles
which should be met before municipal governments grant access to their rights-of-way.
Those principles are:
1."municipal governments must have the ability to control the number and types of
aboveground telecommunications pedestals, kiosks, etc., and the location of underground
infrastructure";
2."the use of municipal rights-of-way by telecommunications companies must not impose
financial costs on municipal governments and taxpayers";
3."municipal governments must not be responsible for the costs of relocating
telecommunications infrastructure if relocation is required for planning or other reasons
deemed necessary by the municipal governments";
4."municipal governments must not be liable for any economic loss, legal costs or physical
restoration costs resulting from the disruption of telecommunications services arising out of
the actions of municipal governments unless grossly negligent"; and
5."municipal governments must receive revenues over and above their direct costs in
providing access to rights-of-way as proper compensation for the use of municipal property
for profit".
Upon reviewing the Rogers-Cantel proposal within the context of the FCM Model
Agreement, I am of the opinion that the foregoing agreement reflects these guidelines.
Conclusion:
In my opinion, these terms and conditions are fair and reasonable, and I have been advised
that they are acceptable to the City of Toronto's Transportation Division.
Contact Name:
Mr. Tony Pittiglio, Manager of Property Services; Telephone No.: (416)392-8155; Fax No.:
(416)392-4828; E-mail address: anthony_pittiglio@metrodesk.metrotor.on.ca.
(cs98115.wpd)
Margaret Rodrigues
Commissioner of Corporate Services
GH/wvm