TELECOMMUNICATION AGREEMENT
Draft agreement between the Town of View Royal and CREST for the siting and operation of telecommunications equipment at 333 Island Highway.
TELECOMMUNICATION AGREEMENT
THIS AGREEMENT made this day of , 2018.
BETWEEN:
TOWN OF VIEW ROYAL, a town under the Community Charter, and having an office at 45 View Royal Avenue, Victoria, BC, V9B 1A6 Telephone: 250-479-6800 (the "Licensor")
AND:
CAPITAL REGION EMERGENCY SERVICE TELECOMMUNICATIONS (CREST) INCORPORATED, a company incorporated under the laws of British Columbia and having a place of business at Unit 110-2944 West Shore Parkway, Victoria, BC, V9B 0B2 Telephone: 250-391-6552 (the "Licensee")
Both of whom are sometimes herein referred to as the “Parties” and each of whom is a party to this Agreement
WHEREAS:
A. The Licensor is the registered owner in fee simple of those lands and premises in the Town of View Royal, having an address of 333 Island Highway, Victoria, BC and legally described as:
Parcel Identifier: 029 073 740 Lot 1, Section 92, Esquimalt District, Plan EPP30967 (hereinafter referred to as the “Property”);
B. The Property is the location of the Licensor’s Public Safety Building;
C. The Licensee is undertaking an emergency communications system upgrade to resolve radio transmission service gaps and to advance to a P25 Standard;
D. This Agreement is necessary for the siting, operation and maintenance of the Telecommunication Equipment for the emergency communications system upgrade by the Licensee;
NOW THIS AGREEMENT WITNESSES that in consideration of the premises, the terms and conditions hereinafter contained, the sufficiency and receipt of which is hereby acknowledged, the Parties covenant and agree each with the other as follows:
The Licensor grants to the Licensee the right to enter onto the Property to install, maintain, repair, replace, and operate the following equipment only:
- One (1) 47 metre telecommunication tower; and, on and around the telecommunication tower,
- One (1) radio equipment shelter with dimensions of 8’H x 10’W x 10’D;
- Two (2) Colinear Antennae with dimensions of 71"H x 3”W each; and
- Two (2) microwave dishes with dimensions not exceeding 36"H x 24"D each; (collectively the "Telecommunication Equipment")
to improve communications between municipal emergency services and to run a communication and electrical cable from the telecommunication tower to the Licensor’s Public Safety Building equipment room and power supply, under the terms and conditions herein specified.
TERMS AND CONDITIONS:
The Licensee represents and warrants to the Licensor that the Telecommunication Equipment has been engineered to withstand both wind and seismic forces.
The Licensee will acquire all required permits, including but not limited to a municipal building permit, and obtain all necessary permissions from regulatory agencies prior to the installation of the Telecommunication Equipment.
The Licensee will provide to the Licensor letters of assurance provided by qualified professionals as to the safety of design and confirmation that the installation of the Telecommunication Equipment substantially complies in all material respects with applicable enactments respecting safety and all design requirements.
The Licensee will provide to the Licensor proof of payment of all contractors involved in the installation and will immediately remove any builders' liens registered by its contractors.
The Licensor will permit the Licensee, at its own expense, to tie into the existing generator at the Property.
The Licensee will install a check meter for power consumption monitoring and billing purposes. The Licensee is solely responsible for all costs of its power consumption. The Licensee will, on request by the Licensor, have the check meter inspected for accuracy, and will provide the Licensor with power consumption data as and when required by the Licensor.
The telecommunication tower will be built to a standard to accommodate other telecommunication needs. The Licensee will not, unless required by law, permit any third party other than the Licensor to install or utilize the telecommunication tower or Telecommunication Equipment without the prior written consent of the Licensor. Placement of any third party equipment will be determined jointly by the Licensee and the Licensor, to ensure no interference with the use or maintenance of the equipment of the Licensee or Licensor.
Subject to reasonable advance written notice to the Licensor, the Licensor will allow the Licensee access to the Telecommunication Equipment. The Licensor will be entitled at all times to have a representative present to observe the installation, maintenance, repair and replacement of the Telecommunication Equipment. In the event of an emergency, the Licensee may access the Telecommunication Equipment following notice by telephone to the designated contact of the Licensor.
The Licensee will not bury any debris or rubbish of any kind in excavations or backfill, and will remove shoring and like temporary structures as backfilling proceeds. The Licensee will thoroughly clean all areas of the Property to which it has had access under this Agreement of all rubbish and construction debris created or placed thereon by the Licensee and to leave the Property in a neat and clean condition. The Licensee will carry out all work in a proper and workmanlike manner so as to do as little injury to the Licensor's Property as possible.
The Licensee agrees to indemnify and save harmless the Licensor in respect of all claims for bodily injuries or death, property damage, or other loss or damage arising from the Telecommunication Equipment and from the conduct of any work by or any act or omission of the Licensee or any assignee, agent, employee and contractor of the Licensee and in respect of all costs, expenses and liabilities incurred by the Licensor in connection with or arising out of all such claims, including the expenses of any action or proceeding pertaining thereto and in respect of any loss, cost, expense or damage suffered or incurred by the Licensor arising from any breach by the Licensee of any of its covenants and obligations under this Agreement.
Prior to installing the Telecommunication Equipment, the Licensee, at its own expense, will take out and maintain in force while this Agreement is in effect, comprehensive general liability insurance in an amount satisfactory to the Licensor in the Licensor’s sole discretion, and in no event less than the amount of Five Million Dollars ($5,000,000) per occurrence for injury, death or property damage arising out of the Licensee's operations pursuant to this Agreement, which insurance will include the Licensor as an additional insured, and contain cross liability and severability of interest clauses satisfactory to the Licensor. The policy will include that notice by the insurer will be provided to the Licensor in advance of any expiry of the policy. The Licensee will provide a copy to the Licensor of the insurance policy or policies on demand.
The term of this Agreement commences on April 1, 2018 and ends on March 31, 2048 (the "Initial Term"). In the event that the Licensee performs each and every one of the covenants, conditions and provisos in this Agreement, the Parties may, by mutual consent, extend this Agreement for additional one (1) year terms. The extension of this Agreement will be upon the same terms and conditions as contained in this Agreement or upon such other terms and conditions as may be mutually agreed.
This Agreement may be terminated by either Party at any time by mutual agreement.
In spite of any rule of law or equity to the contrary, the Telecommunication Equipment brought onto, set, constructed, laid, erected in, upon or under the Property by the Licensee will at all times remain the property of the Licensee, even if the Telecommunication Equipment is annexed or affixed to the freehold, and the Telecommunication Equipment will at any time and from time to time be removable in whole or in part by the Licensee.
In the event that this Agreement is terminated, the Licensee will remove the Telecommunication Equipment, at its sole cost, unless the Licensor agrees that the Telecommunication Equipment may remain in place, in which case the Telecommunication Equipment will become the property of the Licensor.
The Licensor may assign this agreement at any time and will be relieved of all obligations to the Licensee under this Agreement to the extent such assignee assumes the Licensor's obligations under this Agreement and Licensor will ensure that the assignee receives actual notice of this Agreement. The Licensee will not assign this Agreement without the prior written approval of the Licensor, such approval to be at the sole discretion of the Licensor.
All notices under this Agreement must be in writing and delivered by mail, facsimile or in person to the addressee above and will be deemed received three business days later if mailed and the next business day following the data of transmission by facsimile or personal delivery.
The Licensee acknowledges and agrees that this Agreement constitutes a contractual license, but does not confer upon the Licensee an interest in real property and that the Licensee is accordingly not entitled to register any instrument with respect to this Agreement against the title to the Property. For certainty, no part of the title in fee simple or other property interest to the Licensor's Property will pass to or be vested in the Licensee under or by virtue of this Agreement and the Licensor may fully use and enjoy all of the Licensor's Property subject only to the rights and restrictions in this Agreement.
This is the entire Agreement between the Parties affecting the subject matter described herein. Any amendments must be in writing and signed by both Parties.
If any portion of this Agreement is found to be invalid, such portion will be deemed to have been severed without affecting the validity of the balance of the Agreement.
Except for reasons of financial inability, delay in performance by either Party will be excused for delay for causes beyond their reasonable control, for such reasonable period of time as may be necessary to affect such performance.
The Parties warrant that there are no restrictions contained in any other agreement to which they are a party that would prevent either Party from entering into this Agreement. The provisions of this Agreement are subject to all applicable regulatory laws and regulations, which will prevail in the event of conflict. This Agreement is binding on the Parties and their respective successors and assigns.
The Parties have made no representations, warranties or conditions, express or implied, other than those expressed herein.
Time is of the essence in this Agreement.
This Agreement will enure to the benefit of and be binding upon the parties hereto and their respective heirs, administrators, executors, successors, and permitted assignees.
The waiver by a Party of any failure on the part of the other Party to perform in accordance with any of the terms or conditions of this Agreement is not to be construed as a waiver of any future or continuing failure, whether similar or dissimilar.
Wherever the singular, masculine and neuter are used throughout this Agreement, the same is to be construed as meaning the plural or the feminine or the body corporate or politic as the context so requires.
No remedy under this Agreement is to be deemed exclusive but will, where possible, be cumulative with all other remedies at law or in equity.
This Agreement is to be construed in accordance with and governed by the laws applicable in the Province of British Columbia and Canada.
This Agreement may not be modified or amended except by the written agreement of the parties.
Each Party will promptly notify the other Party of any matter which is likely to continue or give rise to a violation of its obligations under this Agreement.
IN WITNESS WHEREOF the Parties hereto have set their hands and seals as of the day and year first above written.
CAPITAL REGION EMERGENCY SERVICE TELECOMMUNICATIONS (CREST) INCORPORATED by its authorized signatories this _____ day of __________, 2018.
Name: G. Logan, Board Chair
Name: G. Horth, General Manager
TOWN OF VIEW ROYAL by its authorized signatories this _____ day of __________, 2018.
Name: D. Screech, Mayor
Name: K. Anema, Chief Administrative Officer