Loading...
HomeMy WebLinkAbout1375-02 Municipal Rights-of-Way, Regulating Use & OccupationCounty of Newell No. 4 By-law No. 1375-02 A By-law of the County of Newell No. 4, in the Province of Alberta, for the purpose of regulating the use and occupation of Municipal Rights-of-way. Whereas, pursuant to Section 7 of the Municipal Government Act, S.A.1994 c.M-26.1, as amended, a Council of a Municipality may pass by-laws for municipal purposes respecting the safety, health and welfare of people and the protection of people and property. And Whereas, pursuant to Section 7 of the Municipal Government Act, S.A. 1994 c.M- 26.1, as amended, a Council may pass by-laws for municipal purposes respecting people, activities and things in, on or near a public place or place that is open to the public; And Whereas, pursuant to Section 18 of the Municipal Government Act, S.A.1994 c.M- 26.1, asamended, amunicipality has the direction, control and management of all roads within the municipality; And Whereas, pursuant to Section 61 of the Municipal Government Act, S.A.1994 c.M- 26.1, asamended, amunicipality may grant rights, exclusive or otherwise, with respect to its property, including property under the direction, control and management of the municipality; Now therefore, the Council of the County of Newell No. 4 duly assembled, hereby enacts as follows: 1. PURPOSE The purpose of this By-law is: to require every person proposing to carry out work for the installation, maintenance, repair, replacement, extension or operation of Equipment in Rights-of-way to obtain the Municipality's consent to any such work and to apply to the Municipality for the required Permits; b. to provide the Municipality with information on the type and location of Equipment situated in Rights-of-way so that the Municipality can manage its Rights-of-way effectively and efficiently; c. to protect the Municipality from costs, damages or liability associated with the installation, maintenance, repair, replacement, extension or operation of Equipment in Rights-of-way by any person. Regulating the Use and Occupation of Municipal Rights-of-way "~ 2. DEFINITIONS In this By-law: Page 2 a. "Alignment" means a location specified or approved by the Municipality for the location of Equipment in Rights-of-way; "Applicant" means a person applying for a Permit; "Council" means the Council of the County of Newell No. 4; d. "Emergency Work" means the installation, maintenance, repair or replacement of Equipment in rights-of-way where health, safety or the provision of essential services is endangered; e. "Equipment" means any poles, cables, pipes, conduits, pedestals, antennas, vaults, support structures or other similar facilities or structures; "in", with reference to the placement of Equipment in Rights-of-way only, means "in, on, over, under, along or across"; g. "Municipal Manager" means the Chief Administrative Officer of the Municipality or his/her delegate; h. "Municipality" means County of Newell No. 4; "Permit" means any one of the permits and any corresponding applications, in a form set out in Schedule "A" andlor other by-laws of the Municipality, as further modified by the Municipal Manager in any specific case; j. "person" includes one or more individuals, partnerships, bodies corporate, unincorporated organizations, governments, government agencies, trustees, executors, administrators or other legal representatives, other than the Municipality or its legal representatives; "Rights-of-way Access Agreement"means anagreement approved by Council that contains one or more provisions for the granting of consent to a person to do Work in Rights-of-way upon compliance by such person with all other applicable municipal requirements; "Rights-of-way Resolution" means a resolution passed by Council granting consent for a person to do Work in Rights-of-way upon compliance by such person with all other applicable municipal requirements; Regulating the Use and Occupation of Municipal Rights-of-way Page 3 m. "Rights-of-way" means the highways, roads, road allowances, streets, lanes, road diversions, bridges, public utility lots, public space, public water or other public places within the jurisdiction of the Municipality, excluding i. reserve property; ii. tax recovery property; iii. easements, leases and licences; iv. fee simple title property; v. (other). "Work" means the installation, maintenance, repair, replacement, extension or operation of any Equipment in Rights-of-way, excluding Emergency Work. REQUIREMENT FOR MUNICIPAL CONSENT 1) Council may pass Rights-of-way Resolutions and Council orthe Municipal Manager may approve Rights-of-way Access Agreements, subject to such terms and conditions as Council deems appropriate. 2) No person shall do any Work in Rights-of-way unless the person has: a) obtained the consent of the Municipality or is acting on behalf of a person who has obtained consent of the Municipality byway of aRights-of-way Resolution or Rights-of-way Access Agreement, and b) obtained all applicable Permits required by the Municipality as determined by the Municipal Manager. 4. EXCEPTIONS TO THE REQUIREMENT FOR MUNICIPAL CONSENT The provisions of this By-law relating to Municipal consent for Work in Rights-of-way shall not apply to pre-existing by-laws and agreements in place or unless otherwise specifically excluded. 5. APPLICATION FOR A PERMIT 1) Every Applicant shall provide all of the information required for a Permit at the time that the application for the Permit is made. An application for a Permit that does not meet these requirements shall be deemed to be incomplete. 2) Subject to Subsection 3), upon receipt of an application for a Permit, the Municipal Manager shall issue the required Permit subject to such terms and conditions as ~- the Municipal Manager deems appropriate. The terms and conditions contained in Schedule "B" are deemed to be included in every Permit for Work in Rights-of- way, unless otherwise specifically excluded. Regulating the Use and Occupation of Municipal Rights-of-way Page 4 3) The Municipal Manager may reject an application for a Permit where: a) the application for the Permit is incomplete, b) the consent of the Municipality has not been obtained in accordance with Section 3, or c) any conditions precedent to granting the Permit have not been met. 4) The Municipal Manager shall provide an Applicant whose application for a Permit is refused, written reasons for the refusal at the time that the Applicant is advised of the refusal. APPEALS TO COUNCIL 1) Any Applicant whose application for a Permit has been refused may appeal the decision of the Municipal Manager to Council by filing with the Municipal Manager, within thirty (30) days of the Municipal Manager's decision, a notice of appeal containing the Applicant's contact information, grounds of appeal and any related submissions. 2) Within thirty (30) days of the filing of an appeal notice as set out in Subsection 1., the Municipal Manager shall prepare and deliver a report to Council that shall ..-- include: a) the Permit application, b) the Municipal Manager's decision and reasons for any refusal to issue the Permit, and c) the notice of appeal. 3) Following receipt of the report prepared by the Municipal Manager, Council shall, at such time and place as it determines, review the report described in Subsection 2) and shall: a) confirm the original decision made by the Municipal Manager, b) refer the matter back to the Municipal Manager and direct the Municipal Manager to reconsider the matter having regard to such considerations or directions as Council may provide, or c) direct the Municipal Manager to issue a Permit on such terms and conditions as Council may determine. 7. COMPLIANCE WITH MUNICIPAL CONSENT AND PERMITS 1) Every person who obtains the consent of the Municipality to do Work in Rights-of- wayshall comply with the terms and conditions of that consent. .- Regulating the Use and Occupation of Municipal Rights-of-way Page 5 2) Every person who obtains a Permit shall comply with the terms and conditions of that Permit including, without limitation, terms and conditions restricting Work in the Rights-of-way to the Alignments or other portion of the Rights-of-way for which authorization is granted in the Permit. 8. EMERGENCY WORK A person whose Equipment is situated in Rights-of-way may arrange to have such Emergency Work done as is strictly necessary to end a situation in which the health, safety or the provision of essential services is endangered without the prior consent of the Municipality, if it is not possible to obtain such consent prior to the commencement of the Emergency Work, provided that the person, without delay, notifies the Municipal Manager of the occurrence of the Emergency Work and provides such additional information concerning the Emergency Work and its consequences as the Municipal Manager requests. 9. PENALTIES Every person who fails to do anything that he or she is required to do pursuant to this By-law or who does anything that he or she is prohibited from doing under this By-law -- is guilty of an offence. 10. SEVERABILITY If any portion ofthe By-law is, for any reason, declared invalid, in whole or in part, by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent portion. Such declaration shall not affect the validity of the remaining portions, which shall remain in full force and effect. 11. RESOLUTION OF INCONSISTENCIES In the event of any inconsistency between any provision in this By-law and a provision in a Rights-of-way Resolution or aRights-of-way Access Agreement, the provision in this By-law shall take precedence. February 21, 2002 Moved by Councillor Baksa that By-law 1375-02 receive first reading. Carried. March 7, 2002 Moved by Councillor Baksa that By-law 1375-02 receive second reading. Carried. March 7, 2002 Moved by Councillor Harbinson that By-law 1375-02 receive third and final reading. Carried. ~- / o ... ,( ~t ~~t-FAG c'~C~l.~i~-, REEVE COUNTY ADMINISTRATOR SCHEDULE "A" FORMS OF PERMITS AND PERMIT APPLICATIONS Municipal Access Agreement (see attached) MUNICIPAL ACCESS AGREEMENT THIS AGREEMENT made the day of Between: And: (hereinafter called the Company) County of Newell No. 4 (hereinafter called the County) ("Effective Date') Whereas the Company provides telecommunications or broadcasting services; And Whereas, in order to provide telecommunications or broadcasting services, the Company wishes to enter on those highways within the jurisdiction of the County delineated in Schedule "A" ("Rights-of-way') from time-to-time for the purpose of constructing, maintaining, operating and removing support structures, transmission lines and other related telecommunications facilities [as that term is defined in the Telecommunications Act (Canada) ("Telecom Act")], such support structures, transmission lines and other related telecommunications facilities hereinafter called "Equipment", in, on, over, under, along or across the Rights-of way; And Whereas, the County is the public authority having jurisdiction over the Rights-of- way; And Whereas, the Company must obtain the County's consent to the occupancy and use of the Rights-of-way consisting of constructing, maintaining, operating and removing its Equipment in, on, over, under, along or across the Rights-of-way; And Whereas, the Company must not unduly interfere with the public use, enjoyment and safety of the Rights-of-way and must share the use of the Rights-of-way with other providers of services to the public (the Company and all such providers hereinafter collectively called "Service Providers") when occupying and using the Rights-of-way as described above; And Whereas, the County is willing to grant its consent to the occupancy and use of the Rights-of-way consisting of the construction, operation, maintenance and removal of the Equipment in, on, over, under, along or across the Rights-of-way having due regard to the safety, use and enjoyment of the Rights-of-way by others as described above; And Whereas, the County and the Company have agreed that it would be mutually beneficial to outline the terms and conditions pursuant to which said consent shall be provided by the County to the Company in the form of anon-exclusive right; Now Therefore, in consideration of the promises and mutual covenants herein contained, the County and the Company each agree with the other as follows: Scope of Municipal Consent 1. The County hereby consents and grants anon-exclusive right to the Company to occupy and use locations specified by the County within the Rights-of-way ("Alignments") during the term as defined in Section 28 hereof for the purpose of constructing, operating, maintaining and removing its Equipment for use only in the provision of "telecommunications services (as defined in Subsection 2(1) of the Telecom Act) or "broadcasting' [as defined in Subsection 2(1) of the Broadcasting Act (Canada) ("BroadcastAct")] subject to the terms and conditions hereinafter set forth and in accordance with all applicable federal, provincial and municipal statutes, laws and by-laws or other applicable rules and regulations. 2. The Company may access the Rights-of-way in accordance with the terms of this Agreement for the purpose of exercising its rights under Section 1 of this ~.. Agreement. Authorization of Work 3. The Company shall not excavate, break up or otherwise breach the surface of any Rights-of-way or engage in any other work therein for the purpose of constructing, operating, maintaining or removing any of its Equipment in, on, over, under, along or across any Rights-of-way (each of these activities hereinafter collectively called "Work") without first: a) providing plans to the most senior municipal official responsible for overseeing such Work or his designate ("Municipal Manager"), setting out a proposal for an Alignment for the Company's Equipment and such other information required by the Municipal Manager in a form acceptable to the Municipal Manager; and b) obtaining the written authorization of the Municipal Manager to an Alignment. Page 2 February 4, 2002 ..- 4. The Company shall provide all required information and obtain all required municipal construction and/ or other permits normally required by the County in the circumstances prior to commencing any Work. 5. In the event of an emergency involving the Company's Equipment, the Company may perform such Work as is strictly necessary to end the emergency without the prior consent of the County, provided that the Company notifies the County of the occurrence of the Work without delay. Conditions 6. All Work conducted by or on behalf of the Company is subject to the following conditions: a) the Work shall conform to all applicable federal, provincial and municipal statutes, laws and by-laws or other applicable rules and regulations, including, but not limited to, the terms of any authorizations granted by the Municipal Manager, permits issued by the County and the provisions of this Agreement; b) the Work shall be conducted and completed to the satisfaction of the Municipal Manager; c) the Work shall be performed in a manner that safeguards and protects all other support structures, transmission lines, equipment, facilities and improvements of any kind ("Improvements") present in the Rights-of-way; d) after completion of any Work, the Company shall leave the Rights-of-way in substantially the same condition in which it was before such Work was undertaken by the Company, free from nuisance and to the satisfaction of the Municipal Manager. If the Company fails to repair and restore any Rights- of-way to the satisfaction of the Municipal Manager within two (2) days of being notified by the County, the County may effect such repairs and charge all costs related thereto to the Company; e) if the County requires that any Work be stopped, the Company shall cease such Work upon delivery of a written notice to the Company to that effect by the Municipal Manager; and f) the Company shall be responsible for all Work, including the cost of such Work. Page 3 February 4, 2002 Representations and Warranties 7. The Company represents and warrants to, and covenants and agrees with the County that: a) the Company's occupancy and use of the Rights-of-way shall not unduly interfere with the public use and enjoyment of the Rights-of-way; b) the Company has no title to or other ownership or property interest in any Alignments or Rights-of-way; c) the Company shall not register or permit to be registered any instrument claiming an estate, interest or property right in the Rights-of-way or other property of the County in any real or personal property registry by virtue of the Company's occupancy or use of the Rights-of-way or this Agreement. d) the Company shall not suffer or permit any lien to be filed or registered against any Rights-of-way; e) the County has made no representations or warranties as to the state of ,,,., repair of the Rights-of-way or the suitability of the Rights-of-way for any business, activity or purpose whatsoever and the Company hereby agrees to take the Rights-of-way on an "as is" basis and that the County 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 Rights-of-way; f) the Company shall use reasonable efforts to schedule Work and share Alignments and support structures with other Service Providers occupying and using the Rights-of-way, with the intent of minimizing the necessity for road cuts, construction and the placement of support structures in the Rights- of-way; g) the Company shall notify the County of any damage caused by the Company in connection with its Work, Equipment or enjoyment of its right to occupy and use Alignments under this Agreement; Page 4 February 4, 2002 h) the County may cross the Company's Equipment with its own Improvements or otherwise, and may use the Rights-of-way for any purpose, and may allow other parties to cross the Company's Equipment with their Improvements or otherwise and to use the Rights-of-way, all at no charge to the County and without further agreement with the Company; and i) all of the covenants, representations, warranties, indemnities and outstanding obligations (including outstanding payment obligations) of the Company under this Agreement shall survive the termination of the Agreement, however caused. 8. The County represents and warrants to and covenants and agrees with the Company that the County has jurisdiction over any Rights-of-way for which the County grants consent to the Company and has the authority to grant such consent. As-Built Drawings 9. The Company shall provide "as-built" drawings to the County in form(s) and content acceptable to the Municipal Manager, including electronic format, if required, within two (2) months of completing the construction of Equipment in, on, ,-- over, under, along or across any Rights-of-way. Utility Coordination 10. The Company agrees to participate in any centralized utility location notification procedures of the County with the County and other Service Providers and to pay its proportionate share of the costs of the administration of such procedures. 11. The Company further agrees to participate in any utility coordinating committees or forums as may be established by the County and to pay its proportionate share of the costs of the administration of such forums. 12. The Company shall, at no cost to the County, provide locations of Equipment within forty-eight (48) hours of receiving such requests from the County. Page 5 February 4, 2002 .-- Emergencies ~- 13. The Company shall provide to the Municipal Manager a list of twenty-four (24) hour emergency contact personnel and shall ensure that the aforementioned list is always current. 14. The County shall provide to the Company a current list of twenty-four (24) hour emergency contact personnel for both its own personnel and those of the other Service Providers. Relocation 15. Upon receipt of thirty (30) days advance written notice from the Municipal Manager, or such other time as is mutually agreed to by the parties, the Company shall, at its own expense, relocate Equipment to which this Agreement relates, or perform any other Work in connection with the Rights-of-way as may be required by the County for municipal purposes. However, in cases of emergency, the County may take any measures deemed necessary for public safety with respect to the Equipment that may be required in the circumstances as the County shall determine and the Company shall reimburse the County for all related expenses thereby incurred. 16. If the Company fails to complete the relocation of the Equipment in accordance with Section 15, or fails to repair the Rights-of-way or to perform any other Work required to be done by the Company pursuant to this Agreement in a timely and expeditious manner to the satisfaction of the Municipal Manager, the County may, but is not obligated to, at its sole option, complete such relocation or other Work. In such event, the Company shall pay the cost of such relocation Work to the County, together with an administrative charge of fifteen (15) percent of such cost. Security 17. The Company may be required to post security with the County from time-to-time in an amount and form acceptable to the Municipal Manager to guarantee the performance by the Company of its obligations in connection with Work performed under this Agreement. The vehicle by which such security is granted shall, in each case, specify with precision the Work that is guaranteed by the security, and the circumstances under which the County may have recourse to the security. Security posted in respect of certain Work shall be released promptly by the County if and to the extent that the Work is completed to the satisfaction of the Municipal Manager. Page 6 February 4, 2002 ,._. Payments to County 18. The Company covenants and agrees to pay to the County: a) all of the usual permit fees associated with the permits that the Company requires in connection with its Work; and Taxes and Utilities 19. The Company shall, in addition to other amounts specifically payable by it under this Agreement, be responsible for the payment of all taxes attributable to the Company including, without limitation, those taxes attributable to the Company's use and occupancy of the Rights-of-way, and for the payment of the cost of all services and utilities consumed in respect of the Company's operations. 20. For the purpose of Section 19, "taxes" includes, without limitation, all taxes, duties, levies, assessments, rates, fees or charges of any kind whatsoever, imposed, levied, assessed or charged now or in the future by any Government authority of any kind, and any payments that are levied in substitution, or in lieu, or in addition to any of the foregoing. -- Late Payment Charges 21. Payment terms are net thirty (30) days under this Agreement. Overdue accounts shall be charged interest at the rate of one and one-half (1.5) percent per month compounded monthly or at the maximum lawful rate, whichever is lower. Obsolete Equipment 22. The Company shall notify the County promptly when it ceases to use any Equipment situated in, on, over, under, along or across the Rights-of-way. Upon such notification, the County may, at any time, require the Company to remove the said Equipment within a specified period of time, being no less than ninety (90) days from the date of the Company's notification, failing which such Equipment and any support structure containing only such obsolete Equipment shall be deemed to have been abandoned by the Company and title thereto shall vest in the County. Page 7 February 4, 2002 Excess Capacity 23. Whenever the Company installs new conduits by open cut along or across any Rights-of-way and the new conduits are not employed for the sole purpose of connecting a single building or customer location to the Company's Equipment, the Company shall: a) unless otherwise waived by the Municipal Manager, in writing, ensure that any conduits to be placed in the Rights-of-way are sized so as to accommodate the transmission capacity requirements of the Company along or across the Rights-of-way for a period of five (5) years from the date of installation of the conduits; and b) install such additional excess conduit capacity as the Municipal Manager requires and make available to other providers of telecommunications or broadcasting services, on reasonable terms and conditions, such additional excess conduit capacity as the County and the Company may, in writing, agree or the Canadian Radio-television and Telecommunications Commission ("CRTC") or its successors may direct, for the more efficient administration of the occupancy and use of the Rights-of-way. --- 24. The Company shall use its best efforts to place its Equipment in or along existing support structures situated in the Rights-of-way, whenever possible. Third Party Equipment 25. The Company shall not permit any third party to use any Alignment occupied or used by the Company under this Agreement, unless the third party first provides evidence to the Company that it has entered into an agreement with the County in respect of such use. 26. In all cases where the Company shares ownership or other rights with a third party in respect of any Equipment situated in, on, over, under, along or across an Alignment occupied or used by the Company under this Agreement, the Company shall remain responsible for performing all of its obligations under this Agreement, as if it is the sole owner of the Equipment. 27. For the purpose of Sections 25 & 26 of this Agreement, a "use" of an Alignment by a third party occurs whenever a third party situates any Equipment or connects any Equipment to the Equipment of the Company in, on, over, under, along or across the Alignment, or is in the position where it may cause any Work to be performed in, on, over, under, along or across the Alignment. Page 8 February 4, 2002 ,,,., Term of Agreement 28. Unless otherwise terminated in accordance with its provisions, the initial term of this Agreement shall commence on the Effective Date and shall be three (3) years in duration. Unless the Agreement is otherwise terminated in accordance with its provisions, it shall be automatically renewed for one (1) additional successive term of three (3) years duration, subject to the renegotiation of the fees set out in Schedule "B", if applicable. The initial term and the subsequent term, to the extent applicable, shall be called the Term. Default and Termination 29. This Agreement may be terminated at any time during the Term by the mutual written agreement of the County and the Company. 30. This Agreement may be terminated by the County by written notice delivered to the Company upon the occurrence of one of the following events: a) the Company fails to pay any undisputed amount payable pursuant to this Agreement within ninety (90) days of the date on which the payment is due; .-, b) the Company fails to pay fifty (50) percent of any disputed amount payable pursuant to this Agreement within ninety (90) days of the date on which the County claims that the payment is due; c) the Company unduly interferes with the public (including Service Providers) use or enjoyment of the Rights-of-way and does not rectify such interference within thirty (30) days of being notified by the County of the occurrence of such undue interference; or d) there is filed by or against the Company in any court an uncontested petition in bankruptcy, or insolvency, or for reorganization, or for appointment of a liquidator of the Company's property, or if the Company makes an assignment, or petitions for, or enters into an arrangement for the benefit of creditors and any such assignment or petition remains undismissed after thirty (30) days, or is not stayed on appeal. 31. A party to this Agreement may terminate the Agreement upon one hundred and eighty (180) days written notice delivered to the other party if that other party defaults under any of its obligations under this Agreement and fails to correct the default prior to the expiry of the one hundred and eighty (180) day period. Page 9 February 4, 2002 ,-, 32. Upon termination of the Agreement and in the absence of a new agreement, the Company shall, if and to the extent requested by the County, remove its Equipment, at its own expense, and within the time period specified by the County, in accordance with any directions provided by the Municipal Manager for such removal, failing which either party may apply to the CRTC for a resolution of the matter. A failure by the Company either to comply with the Municipal Manager's direction and contest such a direction at the CRTC within thirty (30) days of delivery of written notice of the direction, or to comply with an order made by the CRTC for removal of Equipment within the time frame set out in the order, shall result in the Equipment being deemed to have been abandoned and title therein shall vest in the County at the option of the County. Occupational Health and Safety and Traffic 33. The Company shall conform and shall be responsible for the conformance by its officers, employees, agents, contractors and invitees to all health and safety laws including any regulations requiring installation of safety devices or appliances, and any applicable traffic laws or regulations (collectively "Safety Rules"). The County may, on twenty-four (24) hours written notice to the Company, or sooner if, in the opinion of the County, the likelihood of harm to persons is imminent, suspend --- Work performed by or on behalf of the Company on that portion of the Equipment located in, on, under, along or across Rights-of-way where there appears to be a lack of compliance with the Safety Rules or because conditions of danger exist that would likely result in injury to any person. Such suspension shall continue until the lack of compliance or danger is eliminated. Environmental Responsibility 34. The Company agrees to assume all environmental liability relating to its occupancy and use of the Rights-of-way including, but not limited to, any liability for clean-up of any hazardous substance in, on, under, along, across and around Rights-of-way which result from: a) the operations of the Company in, on, under, along, across or around the Rights-of-way; or b) any products or goods brought in, on, under, along, across or around the Rights-of-way by the Company, or by any other person with the express or implied consent of the Company. Page 10 February 4, 2002 35. For the purpose of Subsection 7 e) and Section 34, hazardous substance means any hazardous substance and includes, but is not limited to, radiation, petroleum products and by-products, 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. Liability and Indemnification 36. The County shall not, in connection with this Agreement, be liable for any damage to the Equipment or other property of the Company, or for the injury or death of any officer, employee, agent, contractor, licensee or invitee of the Company except where caused by the willful misconduct or gross negligence of the County or its employees. 37. The Company hereby indemnifies the County from and against all losses, liabilities, costs, damages and expenses (including reasonable legal fees and disbursements) incurred by the County in connection with this Agreement as a result of any claim, action, suit or proceeding based on a claim of injury to the person or property of any third party caused by the wilful misconduct or negligence of the Company, its officers, employees, agents, contractors, licensees or invitees. 38. Subject to the provisions of Sections 36 and 39, the County hereby indemnifies the Company from and against all losses, liabilities, costs, damages, and expenses (including reasonable legal fees and disbursements) incurred by the Company in connection with this Agreement as a result of any claim, action, suit or proceeding based on a claim of injury to the person or property of any third party caused by the wilful misconduct or gross negligence of the County, its officers, employees, agents, contractors, licensees or invitees. 39. Notwithstanding anything contained in this Agreement, the County shall not be liable in any way for indirect or consequential losses or damages, or damages for pure economic loss, howsoever caused or contributed to, in connection with this Agreement or with any Equipment, other property or Rights-of-way governed hereby. Successors and Assigns 40. This Agreement shall be binding upon and shall enure to the benefit of the Company and the County and their respective successors and assignees. For the purposes of this Agreement, "Successors" of a party shall include any person, firm, corporation or other entity which at any time, whether by merger, acquisition, ---~ purchase or otherwise, shall acquire all or substantially all of the assets of~that party. Page 11 February 4, 2002 The Company may assign this Agreement during the Term to an "affiliate", as that term is defined in the Canada Business Corporations Act (Canada), upon advance written notice to the County. The Company may not otherwise assign this Agreement without the advance written consent of the County, which consent may not be unreasonably withheld, conditioned or delayed. 41. In the event of any assignment of the Agreement by the Company, the Company shall remain jointly and severally liable under this Agreement in all respects with the assignee, and the County may require the assignee to enter into its own agreement with the County before the assignment becomes effective. 42. Despite Section 40, the Company may pledge the rights granted by this Agreement as security without the consent of the County to any person directly or indirectly providing financing to the Company but such pledge shall not release the Company from its obligations and liabilities under this Agreement. Non-Parties to Agreement 43. Nothing in this Agreement shall be construed as affecting any rights or otherwise of others not a party to this Agreement. .- No Property Rights 44. No occupancy or use of the Rights-of-way under this Agreement shall create or vest in the Company or any other party any ownership or property rights in any Alignments or in the Rights-of-way, and the Company shall be and remain a non- exclusive occupant and user of the Rights-of-way. 45. Placement of the Equipment in the Rights-of-way shall not create or vest in the County any ownership on property rights to the Equipment, except as specifically provided herein. Workers' Compensation Coverage 46. The Company agrees that it shall, at its own expense, procure and carry or cause to be procured and carried and paid for, full workers' compensation coverage for itself and all workers, employees, and others engaged in or upon any Work. Page 12 February 4, 2002 ,__ Insurance 47. The Company shall maintain insurance in sufficient amount and description as will protect the County from claims for damages, personal injury including death, and for claims from property damage which may arise under this Agreement including, but not limited to, the construction, maintenance or operation of the Equipment in, on, under, over, along and across the Rights-of-way or any act or omission of the Company's employees, agents, contractors or licensees. 48. In addition to the foregoing, the Company covenants and agrees that with respect to the insurance coverage described in Section 47: a) the limits of liability for personal injury, bodily injury and property damage combined shall be for not less than five million dollars ($5,000,000.00) for each occurrence, or such other amount as the County may require by written notice delivered to the Company from time-to-time; b) the comprehensive general liability insurance shall extend to cover the contractual obligations of the Company as stated within this Agreement, shall list the County as an additional named insured and shall contain a cross-liability clause and no subrogation clause as against the County; and c) all policies shall provide that they cannot be canceled, lapsed or materially changed without at least thirty (30) days notice to the County by registered mail. General 49. Independent Contractors. The relationship of the Company and the County established by this Agreement is that of independent contractors and nothing contained in this Agreement shall be construed: a) to give either party the power to direct or control the day-to-day activities of the other; b) to constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking; or c) to allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. Page 13 February 4, 2002 50. Notice. All formal notices hereunder shall be in writing and shall be deemed effective upon receipt when delivered by hand, overnight delivery courier, by facsimile transmission (provided such notice is also given in any of the other manners set forth herein), or when mailed by registered or certified mail, postage prepaid, to the parties at the addresses listed below (or at such other address for a party as shall be specified by like notice). If to the County: County of Newell No. 4 Box 130 (707 - 2"d Avenue East) Brooks, AB T1R 1B2 Fax #: 403-362-8681 If to the Company: 51. Modifications. No waiver of or changes to any provision of this Agreement shall be effective unless reduced to writing and signed by authorized representatives of both parties. 52. Waiver. The failure of either party to insist upon strict adherence to any term or condition of this Agreement on any occasion shall not be considered a waiver of any right thereafter to insist upon strict adherence to that term or condition or any other term or condition of this Agreement. 53. Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court or regulator of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect, and the parties shall endeavor to give effect to the Agreement as originally contemplated before the provision was held to be invalid or unenforceable to the maximum extent permitted by law. Page 14 February 4, 2002 ~-- 54. Counterparts; Original Signature Copies. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one Agreement. Facsimile reproductions of signatures shall be deemed to be original. 55. Time. Time is of the essence in this Agreement. 56. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein, excluding the conflict of laws provisions thereof. 57. Equitable Relief. Either party may, in addition to any other remedies it may have at law or equity, seek equitable relief, including, without limitation, injunctive relief, and specific performance to enforce its rights or the other party's obligations under this Agreement. 58. Headings. The section headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. The terms "subsection' and "section' refer to subsection and section of this Agreement, respectively, unless explicitly otherwise stated. 59. Gender, Number and Person. Words importing the neuter gender shall include the masculine and feminine genders. In this Agreement, "party", "third party" or "person" includes any individual, corporation, partnership, association, joint venture or organization of any kind and the lawful trustee, successor, assignee, transferee or personal representative of any of the foregoing. Words importing the singular shall include the plural and vice versa. 60. Treatment of Personnel. Each party shall bear sole responsibility for payment of compensation (including applicable benefits) to its personnel assigned to perform that party's obligations under this Agreement, and shall also bear sole responsibility for any applicable source deductions required by law in respect of such personnel. Under no circumstances shall the other party be considered the employer of any such personnel. 61. Cumulative Remedies. Except as otherwise expressly stated in this Agreement, all remedies available to either party for breach of this Agreement are cumulative and may be exercised concurrently or separately and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies. Page 15 February 4, 2002 62. No Rules of Construction. This Agreement shall not be interpreted in favor or against a party on the basis of the existence or absence of legal representation in the case of either party. 63. Inconsistency with Municipal Sy-laws. In the event of an inconsistency between this Agreement and any applicable by-law, rule or regulation of the County, the by- law, rule or regulation shall take precedence to the extent of the inconsistency. 64. Entire Agreement. This Agreement set forth the entire agreement and understanding of the parties relating to the subject matter herein and supersede all prior agreements, whether oral or written, relating to the subject matter hereof. 65. Acknowledgment. Each party acknowledges that it has read this Agreement, including the Schedules attached hereto and forming part hereof, and each party understands and agrees to be bound by its terms and conditions. In Witness Whereof, the parties have caused this Agreement to be executed by their duly authorized representatives. .- THE COMPANY - (Insert the name of the Company) Name: Title: Name: Title: THE COUNTY -County of Newell No. 4 Name: Title: Reeve Name: Title: Administrator Page 16 February 4, 2002 SCHEDULE "B" PERMIT STANDARD TERMS AND CONDITIONS r~ These standard terms and conditions apply to all Work conducted by or on behalf of the Applicant. Unless otherwise specifically provided in these standard terms and conditions, capitalized terms herein have the same meaning given to them in By-law 1375-02, "A By-law to Regulate the Use and Occupation of a Municipal Rights-of-way", as amended from time-to-time. 3. All Work shall conform to all applicable federal, provincial and municipal statutes, laws and by-laws and other applicable legal requirements. All Work shall be conducted and completed to the satisfaction of the Municipal Manager. 5. All Work shall be performed in a manner that safeguards and protects all other support structures, transmission lines, equipment, facilities and improvements of any kind present in the Rights-of-way. After completion of any Work, the Applicant shall leave the Rights-of-way in substantially the same condition in which they were before such Work was undertaken by the Applicant, free from nuisance and to the satisfaction of the Municipal Manager. If the applicant fails to repair and restore any Rights-of-way to the satisfaction of the Municipal Manager within two (2) days of being notified by the Municipality, the Municipality may effect such repairs and charge all costs related thereto to the Applicant. -- 7. If the Municipality requires that any Work be stopped, the Applicant shall cease such Work upon delivery of a written notice to the Applicant to that effect by the Municipal Manager. 8. The Applicant shall be at all times responsible for all Work, including the cost of such Work. 9. The Applicant's Work shall not unduly interfere with the public use and enjoyment of the Rights-of-way, 10. The Applicant shall notify the Municipality promptly of any damage caused by the Applicant in connection with its Work. 11. The Municipality has made no representations or warranties as to the state of repair of the Rights-of-way or the suitability of the Rights-of-way for any business, activity or purpose whatsoever and the Applicant hereby agrees to take the Rights-of-way on an "as is" basis for the purpose of the carrying out of the Applicant's Work and the Municipality 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 Rights-of- way. 12. The Applicant may be required to post security with the Municipality from time-to-time in an amount and form acceptable to the Municipal Manager to guarantee the performance by the Applicant of its obligations in connection with Work performed under this Permit. The vehicle by which such security is granted shall, in each case, specify with precision the Work that is guaranteed by the security and the circumstances under which the Municipality may have recourse to the security. Security posted in respect of certain Work shall be released ''~ promptly by the Municipality if and to the extent that the Work is completed to the satisfaction of the Municipal Manager. -2- ~-- 13. The Applicant shall conform and shall be responsible for the conformance by its officers, employees, agents, contractors and invitees to all health and safety laws including any regulations requiring installation of safety devices or appliances, and any applicable traffic laws or regulations (collectively "Safety Rules"). The Municipality may, on twenty-four (24) hours written notice to the Applicant, or sooner if in the opinion of the Municipality the likelihood of harm to persons is imminent, suspend Work performed by or on behalf of the Applicant where there appears to be a lack of compliance with the Safety Rules or because conditions of danger exist that would likely result in injury to any person. Such suspension shall continue until the lack of compliance or danger is eliminated. 14. For the purpose of this provision, "hazardous substance" means any hazardous substance and includes, but is not limited to, radiation, petroleum products and by-products, 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. The Applicant agrees to assume all environmental liability relating to its Work in the Rights-of-way including, but not limited to, any liability for clean-up of any hazardous substance in, on, under, along, across and around the Rights-of-way which result from: a) the operations of the Applicant, in, on, over, under, along, across or around the Rights-of-way; or b) any products or goods brought in, on, over, under, along, across or around the Rights-of-way by the Applicant or by any other person with the express or implied consent of the Applicant. r-. 15. The Municipality shall not, in connection with the Applicant's Work, be liable for any damage to the Equipment or other property of the Applicant, or for the injury or death of any officer, employee, agent, contractor, licensee or invitee of the Applicant except where caused by the willful misconduct or gross negligence of the Municipality or its employees. 16. The Applicant hereby indemnifies the Municipality from and against all losses, liabilities, costs, damages, and expenses (including reasonable legal fees and disbursements) incurred by the Municipality in connection with the Applicant's Work as a result of any claim, action, suit or proceeding based on a claim of injury to the person or property of any third party caused by the wilful misconduct or negligence of the Applicant, its officers, employees, agents, contractors, licensees or invitees. 17. The Municipality shall not be liable in any way for indirect or consequential losses or damages, or damages for pure economic loss, howsoever caused or contributed to, in connection with the Applicant's Work. 18. The Applicant shall, at its own expense, procure and carry, or cause to be procured and carried and paid for, full workers' compensation coverage for itself and all workers, employees and others engaged in or upon any Work. 19. The Applicant shall maintain insurance coverage, sufficient in amount and coverage to meet the requirements of the Municipality, as notified by the Municipal Manger from time-to-time. All such insurance policies shall provide that they cannot be cancelled, lapsed or materially changed without at least thirty (30) days notice to the Municipality by registered mail. All such insurance policies shall contain across-liability clause and no subrogation clause as against the Municipality and shall name the Municipality as a named insured. (Additional and/or alternate standard terms and conditions may be required depending on municipal needs and practices.)