January 4, 1998

To:Corporate Services Committee

From:Commissioner of Corporate Services

Subject:Installation of Micro-wave Dishes, Antennas and Monitoring Equipment on the City-owned Water Tower at Leslie Street/Lake Shore Boulevard East (Ward 26 - East Toronto)

Purpose:

To enter into a Licence Agreement with Clearnet PCS Inc., to install micro-wave dishes, antennas and monitoring equipment on the City-owned water tower at Leslie Street/Lake Shore Boulevard East.

Financial Implications:

The rentals from this Licence Agreement will generate revenue of approximately $58,400.00, net, for the entire 5-year term of the agreement.

Recommendations:

It is recommended that:

(1)authority be granted to enter into a five (5) year Licence Agreement with Clearnet PCS Inc., with two 5-year options to renew, based on the terms and conditions outlined below, subject to a form and administrative costs acceptable to the City Solicitor; and

(2)the appropriate City officials be authorized and directed to take the necessary action to give effect thereto.

Background:

Clearnet PCS Inc., through its agent, Royal LePage, enquired about installing Clearnet communication equipment on the City-owned water tower at Leslie Street/Lake Shore Boulevard East by way of a licence.

Comments:

Upon negotiations with Mr. Chris Vardon, Senior Consultant of Royal LePage Professional Services Inc., 33 Yonge Street, Suite 900, Toronto, Ontario, M5E 1S9, agreement has been reached on the following terms and conditions:

(1)Licensed Location:

The Leslie Street Water Tower on the south side of Lake Shore Boulevard East in the City of Toronto;

(2)License Term:

Five (5) 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 Clearnet is not in default, Clearnet shall have two options to extend for a five-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 and shall be comparable to the annual market fee for similar installations operating in the 1.850 GHZ to 1.990 GHZ range;

The Commissioner of Works and Emergency Services Department (hereinafter referred to as "Commissioner") shall, after the initial five-year term, with six (6) months' notice to Clearnet, have the sole discretion to terminate this License and Clearnet shall remove its equipment and restore the property to the satisfaction of the Commissioner;

Clearnet shall supply a letter of credit in an amount or amounts to be established by the Commissioner based on the estimated construction cost of the project to be submitted by Clearnet's design consultant. This letter of credit must be in a form and content acceptable to the Commissioner and/or the City Solicitor and must be secured by Clearnet upon the Commissioner's approval of the design and prior to or at the time of execution of the License. The letter of credit will remain in effect throughout the original term of the License and renewals thereof;

At the end of each five-year term, Clearnet will pay a reasonable lump sum to cover Works' inspection of the site as it relates to the proposed installation;

(5)License Fee:

An annual fee of $11,000.00, net, plus an annual escalation of three (3%) per cent. for the right to install up to six antennas (which equates to three transceivers) and two microwave dishes approximately one foot in diameter and/or ancillary monitoring equipment for wireless communications at the approved location. Clearnet, at its sole expense, shall be responsible for all applicable taxes, including any increase in realty taxes and any costs related thereto. The payment of the annual fee shall commence on the Commencement Date of the License Agreement;

(6)Use:

The installation of the antennas, dishes and/or related monitoring equipment are to be used to enhance wireless communication coverage of Clearnet's wireless telecommunication services, save and except any video and/or television transmission, including pay T.V;

(7)Non-exclusive Right:

Any right granted to Clearnet 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 Clearnet, the subsequent licensed party shall suspend its transmission and all parties shall use their 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. In no circumstances, however, that the City of Toronto be responsible for any financial loss or damage to Clearnet as a result of such interference;

(8)Other Costs:

Clearnet 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 Clearnet's equipment and/or operation, as invoiced by the City of Toronto, acting reasonably;

Clearnet, at its sole expense, shall prepare and submit to the Commissioner an Engineering Report ensuring that the addition of antennas, dishes, mounts and any other equipment, does not affect the structural integrity of the tower. Clearnet will pay reasonable engineering review and inspection fees to the Commissioner to cover the cost for reviewing reports and drawings submitted by Clearnet, and for any site inspection that may be deemed necessary during the construction. A deposit of $5,000.00 shall be required for this purpose upon execution of the License Agreement and any unused amount shall be refunded to Clearnet. Should this deposit, however, be not sufficient to cover the review cost, Clearnet will be invoiced by the City of Toronto, acting reasonably;

(9)Insurance:

Clearnet, at its sole expense, shall obtain adequate insurance of all types in an amount and form satisfactory to the City Solicitor and/or the Commissioner of Finance, with the City of Toronto shown as additional insured and with Cross Liability and Waiver of Subrogation clauses;

(10)Indemnities:

(i)Clearnet shall, at all times, indemnify and save harmless the City of Toronto from and against any and all manner of claims, demands, 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 City of Toronto or its property in respect of any loss, damage or injury (including fatal injury) to any person or property (including without restriction, employees, agents and property of the City of Toronto or of Clearnet) directly or indirectly arising out of, resulting from or sustained as a result of the Clearnet's occupation or use of, or any operation in connection with, the licensed area or any wiring, devices, equipment, fixture or chattels thereon; and

(ii)Clearnet shall at all times indemnify and save harmless the City of Toronto from and against any and all claims, demands, losses, costs, charges, actions and other proceedings whatsoever under the Construction Lien Act, in connection with any work done for Clearnet 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)Clearnet's Improvement:

Clearnet shall, at its sole expense, be responsible to install all necessary equipment for its operation, whether it is within the existing building or at a location approved by the Commissioner, including but not limited to all costs incurred by the City of Toronto. Prior to the commencement of work, Clearnet 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. Any graffiti applied to the equipment or building will be removed by Clearnet within seven (7) working days of notice. Clearnet 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 any liability or cost as a result of Clearnet's failure to so comply. Upon the expiry of the License or any renewal thereof, Clearnet shall, at its expense, remove all its equipment, repair all damages, and restore the licensed area, all to the reasonable satisfaction of the Commissioner;

In any event, no equipment, fixtures, instruments or structures of any kind shall be installed indoor of the City's building facility or inside of any of its structure, and Clearnet shall not commence any work prior to the execution of the license;

(12)Maintenance:

(i)Clearnet shall, at its sole expense, repair, replace and maintain its own equipment, including any costs incurred by the City of Toronto;

(ii)Clearnet shall, at its sole expense, be responsible for any repair and/or replacement of any damage to the City of Toronto's equipment associated with the installation and/or its operation;

(iii)Clearnet shall obtain any necessary permit approval from the Commissioner prior to any work commencing and be responsible for any cost incurred by the City of Toronto;

(iv)In the event that Clearnet's equipment and/or its operation interfere with any existing and/or future City of Toronto or its agencies' equipment, the Commissioner may elect to have Clearnet suspend its transmission until Clearnet, 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 Clearnet 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 acting reasonably;

(v)All utility costs will be the sole responsibility of Clearnet and will be separate from any connections to the water tower. As for hydro, Clearnet will arrange at its sole expense to have a separate metre installed and the annual estimated hydro cost shall be paid by Clearnet in advance together with the rent. Adjustments as to actual hydro cost will be done at the end of each year;

(vi)In the event that Clearnet's equipment becomes a suspected source of interference to any existing and/or future City of Toronto or its agencies' equipment and operations, Clearnet shall provide its full co-operation with the City of Toronto and the affected agency in determining the source. If the source of interference is caused by Clearnet's equipment, the City of Toronto may take all action in accordance to subclause (iv) herein;

(vii)All City of Toronto's maintenance/access will take precedence over Clearnet's repair, acting reasonably;

(viii)All cables associated with the installation will be placed underground;

(13)Clearnet shall not enter into any lienable contracts for the supply of services and/or materials to the property without the consent of Toronto's Commissioner of Corporate Services;

(14)During the term of the License, renewal or option to extend thereof, Clearnet, at its sole expense, shall be responsible for compliance with all current Municipal, Provincial and Federal laws, by-laws, 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 City of Toronto harmless from any liability or cost suffered by Clearnet or the City of Toronto as a result of Clearnet's failure to so comply. At the request of the City of Toronto, Clearnet shall be required to submit proof of such compliances. More specifically, Clearnet shall not commence work or operation without receipt of permits, licenses or approvals from proper authorities;

(15)Clearnet 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 the Commissioner of Corporate Services;

(16)Clearnet shall, at its sole expense, design and conduct necessary public consultation meetings with the local residents of the area regarding the work to be undertaken. The consultation program, together with the plan and other presentation materials, are to be submitted for approval by the Commissioner;

(17)Clearnet shall not make any changes in surfacing, grading, landscaping to the licensed property or remove tree(s) without the prior written approval of the Commissioner;

(18)Clearnet shall not be permitted to store or use any hazardous materials or conduct any act which may cause soil contamination;

(19)Clearnet 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);

(20)Clearnet shall, at it sole expense, keep the licensed property 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;

(21)Clearnet 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;

(22)Clearnet shall not install any equipment or carry on any operation at the licensed area in such way as to increase the insurance risk;

(23)Clearnet shall not sublet or assign without the written consent from the City of Toronto, such consent may be arbitrarily withheld. Notwithstanding the foregoing, Clearnet may, upon given notice to the City of Toronto, assign, sublet or license to a parent, subsidiary or affiliated corporation provided the purpose and use remain the same;

(24)In the event the License is not executed by Clearnet within six (6) months from the date of Toronto Council's approval, this agreement, at City of Toronto's sole option, may become null and void;

(25)The City of Toronto will not pay any real estate commission associated with this transaction. Both parties warrant that there are no commissions due and payable under this agreement; and

(26)All documentation shall be in the City of Toronto's standard form and notwithstanding any terms and conditions contained or not contained in this proposal, shall be in a form and content including administrative costs, mutually satisfactory to the City Solicitor.

Works and Emergency Services Department staff have advised that the licence agreement set out above is acceptable.

Conclusion:

In my opinion, the rent represents market value and the terms and conditions are fair and reasonable.

Contact Name:

Fred V. Cachuela, Valuator-Negotiator, Facilities and Real Estate Division; Telephone No.: (416) 392-8162; Fax No.: (416) 392-4828; E-mail address: fred_cachuela@metrodesk.metrotor.on.ca; Report No.: CS99006.

Margaret Rodrigues

Commissioner of Corporate Services

FVC/wvm