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Doc#56939
Page 1
CORPORATION OF THE CITY OF NEW WESTMINSTER
HIGHWAY USE UTILITY BYLAW NO. 6129, 1993
EFFECTIVE DATE: AUGUST 16, 1993
CONSOLIDATED FOR CONVENIENCE ONLY
(July 22, 2013)
This is a consolidation of the bylaws listed below. The amendment bylaws have
been combined with the original bylaw for convenience only. This consolidation
is not a legal document. Certified copies of the original bylaws should be
consulted for all interpretations and applications of the bylaws on this subject.
AMENDMENT BYLAW
EFFECTIVE DATE
6604, 2000
April 17, 2000
6670, 2001 (Sch A)
June 11, 2001
7582, 2013
March 4, 2013
The bylaw numbers highlighted in this consolidation refer to the bylaws that
amended the principal Bylaw No. 6129, 1993. The number of any amending
bylaw that has been repealed is not referred to in this consolidation.
Obtainable from the City Clerk's Office
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CORPORATION OF THE CITY OF NEW WESTMINSTER
BYLAW NO. 6129, 1993
A Bylaw to Regulate the Use of City Streets by Utility Companies
Bylaw No. 6604, 2000
WHEREAS under authority of the Municipal Act R.S.B.C. 1996 c. 323
Council may, by Bylaw, regulate in relation to a service and in relation to all uses
of or involving a Highway within the jurisdiction of the City including the
construction,
maintenance,
operation,
removal
of
support
structures,
transmission lines and other related telecommunications facilities (as defined in
subsection 2(1) of the Telecommunications Act) in, on, over, under, along or
across a Highway.
NOW THEREFORE THE CITY COUNCIL of the Corporation of the City of
New Westminster in open meeting assembled HEREBY ENACTS AS
FOLLOWS:
1.
This Bylaw may be cited for all purposes as "Highway Use Utility Bylaw
No. 6129, 1993".
2.
In this Bylaw:
(a)
"Agreement" means the agreement attached to the Bylaw as
Schedule "A".
(b)
"Highway" includes every road, street, lane or right of way designed
or intended for or used by the general public for the passage of
vehicles and every private place or passage way to which the
public, for the purpose of the parking or servicing of vehicle has
access.
(c)
"Permit" means a highway use permit attached to this Bylaw as
Schedule "B".
Bylaw No. 6604, 2000
(d)
"Works" means support structures, transmission lines and other
related telecommunication facilities (as the term is defined in the
Telecommunications Act), in, on, over, under, along or across any
Highway
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Bylaw No. 6604, 2000
3.
No person shall construct, maintain, operate or remove works in, on, over,
under, along or across a Highway unless that person:
(a)
prior to commencing any Work provides all required information
and obtains all municipal construction and/or other permits or
approvals normally required by the City.
(b)
an agreement, substantially in the form of the Municipal Access
Agreement appended hereto as "Schedule A" has been fully
executed by the parties.
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BYLAW NO. 6670, 2001
SCHEDULE "A"
MUNICIPAL ACCESS AGREEMENT
THIS AGREEMENT made the _______ day of ______________ 2001 ("Effective
Date")
B E T W E E N:
XXX
(hereinafter called the Company)
- and -
CORPORATION OF THE CITY OF NEW WESTMINSTER
(hereinafter called the "Municipality")
WHEREAS the Company is a "Canadian carrier" as defined in subsection 2(1) of
the Telecommunications Act (Canada) ("Telecom Act"), or a "distribution
undertaking" as defined in subsection 2(1) of the Broadcasting Act, (Canada)
("Broadcast Act");
AND WHEREAS, in order to operate as a Canadian carrier or distribution
undertaking the Company wishes to enter on those highways (as defined in the
Local Government Act of British Columbia) within the jurisdiction of the Municipality
delineated in Schedule "A" ("Service Corridors") from time-to-time for the purpose
of constructing, maintaining, operating and removing fiber optic cables, ducts,
conduits, manholes, other accessories, support structures, transmission lines and
other related telecommunications facilities (as that term is defined in the Telecom
Act),
such
support
structures,
transmission
lines
and
other
related
telecommunications facilities hereinafter called "Equipment", in, on, over, under,
along or across the Service Corridors;
AND WHEREAS, the Municipality is the public authority having jurisdiction over the
Service Corridors;
AND WHEREAS, the Municipality exercises such jurisdiction for bona fide
municipal purposes;
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AND WHEREAS, in accordance with the Telecom Act, the Company must obtain
the Municipality's consent to the occupancy and use of the Service Corridors
consisting of constructing, maintaining, operating and removing its Equipment in,
on, over, under, along or across the Service Corridors;
AND WHEREAS, the Company must not unduly interfere with the public use,
enjoyment and safety of the Service Corridors and must share the use of the
Service Corridors with other providers of services to the public (the Company and
all such providers hereinafter collectively called "Service Providers") when
occupying and using the Service Corridors as described above;
AND WHEREAS the Municipality is willing to grant its consent to the occupancy
and use of the Service Corridors consisting of the construction, operation,
maintenance and removal of the Equipment in, on, over, under, along or across
the Service Corridors having due regard to the safety, use and enjoyment of the
Service Corridors by others, as described above;
AND WHEREAS the Municipality 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 Municipality to the Company in the form of a non-
exclusive right;
NOW THEREFORE in consideration of the promises and mutual covenants herein
contained, the Municipality and the Company each agree with the other as follows:
Scope of Municipal Consent
1.
The Municipality hereby consents and grants a non-exclusive right to the
Company to occupy and use locations specified by the Municipality within
the Service Corridors ("Alignments") 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
Broadcast Act) 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 Service Corridors in accordance with the
terms of this Agreement for the purpose of exercising its rights under
section 1 of this Agreement.
Authorization of Work
1. The Company shall not excavate, break up or otherwise breach the surface
of any Service Corridors or engage in any other work therein for the
purpose of constructing, operating, maintaining or removing any of its
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Equipment in, on, over, under, along or across any Service Corridors (each
of these activities hereinafter collectively called "Work") without first:
a)
providing plans to the Municipality's specified most senior municipal
official responsible for overseeing such Work or his specified
designate ("Commissioner"), setting out a proposal for an Alignment
for the Company's Equipment and such other information required
by the Commissioner in a form acceptable to the Commissioner; and
b)
obtaining the written authorization of the Commissioner to an
Alignment; and
the Municipality shall process the Company's proposal in a timely manner
so as not to cause any undue delay.
2.
Subject to section 14, the Company shall provide all required information
and obtain all required municipal construction and/or other permits
normally required by the Municipality in the circumstances prior to
commencing any Work.
Conditions
1.
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 Commissioner, permits issued by the
Municipality and the provisions of this Agreement;
b)
the Work shall be conducted and completed to the satisfaction of the
Commissioner in accordance with the approved drawings;
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 Service Corridors;
d)
after completion of any Work, the Company shall leave the Service
Corridors in substantially the same condition in which they were
before such Work was undertaken by the Company, and to the
satisfaction of the Commissioner. If the Company fails to repair and
restore any Service Corridors or to perform any other work required
to be done by the Company pursuant to this Agreement to the
satisfaction of the Commissioner within twenty (20) days of being
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notified by the Municipality, the Municipality may effect such repairs
and charge all costs related thereto to the Company;
e)
if the Municipality requires that any Work be stopped, the Company
shall cease such Work upon delivery of a notice to the Company to
that effect by the Commissioner; and
f)
the Company shall be responsible for all Work, including the cost of
such Work.
Representations and Warranties
1.
The Company represents and warrants to, and covenants and agrees with
the Municipality that:
a)
the Company's occupancy and use of the Service Corridors shall
not unduly interfere with the public use and enjoyment of the
Service Corridors;
b)
all Work performed by or on behalf of the Company 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
Commissioner, permits issued by the Municipality and the provisions
of this Agreement;
c)
after completion of any Work, the Company shall leave the Service
Corridors in substantially the same condition in which they were
before such Work was undertaken by the Company, and to the
satisfaction of the Commissioner;
d)
the Company has no title to or other ownership or property interest in
any Alignments or Service Corridors;
e)
the Company shall not register or permit to be registered any
instrument claiming an estate, interest or property right in the Service
Corridors or other property of the Municipality in any real or personal
property registry by virtue of the Company's occupancy or use of the
Service Corridors or this Agreement;
f)
the Company shall use best efforts to prevent the filing and
registration of any liens against any Service Corridors and will take
all necessary steps to discharge any such liens in a timely manner
in the event of any such filing and registration;
g)
the Company shall use reasonable efforts to schedule Work and
share Alignments and support structures with other Service
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Providers occupying and using the Service Corridors, with the
intent of minimizing the necessity for road cuts, construction and
the placement of support structures in the Service Corridors;
h)
the Company shall notify the Municipality 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;
i)
the Municipality may cross the Company's Equipment with its own
improvements or otherwise, and may use the Service Corridors for
any purpose, and may allow other parties to cross the Company's
Equipment with their improvements or otherwise and to use the
Service Corridors, all at no charge to the Municipality. The
Municipality shall take precautions to prevent significant material
disruption or interference with the Company's Equipment in the
Service Corridors; and
j)
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.
1.
The Municipality represents and warrants to and covenants and agrees with
the Company that:
a)
it has jurisdiction over any Service Corridors for which the
Municipality grants consent to the Company and has the authority
to grant such consent;
b)
the Municipality has made no representations or warranties as to
the state of repair of the Service Corridors or the suitability of the
Service Corridors for any business, activity or purpose whatsoever
and the Company hereby agrees to take the Service Corridors on
an "as is" basis; and
(c)
if this Agreement is terminated by the Municipality, all of the
unfulfilled covenants, indemnities and obligations of the Municipality
under Sections 15, 17, 24(c), 36 and 39 will survive such termination.
As-Built Drawings
1.
The Company shall provide "as-built" drawings to the Municipality in digital
and hard copy form(s) with content acceptable to the Commissioner within
two (2) months of:
a)
completing the conduit installation; and
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b)
completing all of the other Work in accordance with the terms and
conditions of this Agreement.
Utility Coordination
1.
The Company agrees to participate in any centralized utility location
notification procedures of the Municipality with the Municipality and other
Service Providers, and to pay its proportionate share of the costs of the
administration of such procedures.
2.
The Company further agrees to participate in any utility coordinating
committees or forums as may be established by the Municipality, and to pay
its proportionate share of the costs of the administration of such forums.
3.
The Company shall, at no cost to the Municipality, provide site locations of
the Equipment within the Service Corridors within three (3) business days
of receiving such requests from the Municipality, unless the request is an
emergency, in which case the location shall be provided at the Company's
earliest possible opportunity but not exceeding twelve (12) hours.
Emergencies
1.
The Company shall provide to the Commissioner a list of twenty-four (24)
hour
emergency
contact
personnel
and
shall
ensure
that
the
aforementioned list is always current.
2.
The Municipality 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.
3.
Despite section 3, in an emergency, the Company may enter in, on, under
and over the Service Corridor to access its Equipment without the prior
written consent of the Municipality provided that the Company shall notify
the Commissioner at its earliest possible opportunity of the nature of the
emergency and of the Company's activities in respect of it and, if excavation
is involved, the Company shall restore the surface to its original condition,
or as close as possible to its original condition, to the satisfaction of the
Commissioner.
Relocation
1.
If for municipal purposes the Municipality requires that the Equipment to
which this Agreement relates be relocated, then the Company shall, within
30 days where, in the sole discretion of the Municipality there is a specific
municipal need, relocate such Equipment subject to all of the following:
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a)
the Company shall have received from the Municipality a written
notice requesting the relocation; and
b)
if the written notice referred to in section 15(a) above is received:
(i)
following the date written authorization is granted by the
Commissioner under section 3 herein to an alignment (the
"Authorization Date"), but prior to the end of the fourth (4th)
year following the Authorization Date, the Municipality shall
be responsible for and shall pay a portion of such costs of
relocation on a straight line declining basis from the
Authorization Date to and including the end of the fourth (4th)
year following the Authorization Date as follows:
Year 1 -100% of costs of relocation
Year 2 - 75% of costs of relocation
Year 3 - 50% of costs of relocation
Year 4 - 25% of costs of relocation
Year 5 - 0% of costs of relocation
(ii)
after the end of the fourth (4th) year following the
Authorization Date or if the Equipment is not installed in
accordance with the approved as-built drawings, then the
Company shall be solely responsible for and shall pay all
costs of such relocation of the Equipment.
2.
If the Company fails to complete the relocation of the Equipment in
accordance with section 15, the Municipality 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 or other Work to the
Municipality, together with an administrative charge of fifteen percent
(15%) of such cost.
Security
1.
The Company shall, where required by the Commissioner, be required to
post security with the Municipality from time-to-time in an amount equal to
100% of the value of all Works less the value for supply and installation of
the fiber optic cable as approved by the Commissioner, in the form of a
certified cheque, or an irrevocable clean letter of credit to the Commissioner
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 Municipality may have recourse to the security. Security posted in
respect of the Work may be reduced by the Municipality to the extent that
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portions of the Work are completed to the satisfaction of the Commissioner
less the Holdback (as defined below).
The Company may, on completion of the Work to the satisfaction of the
Municipality, reduce the amount of the security to 10% of its original
amount (the "Holdback"). The Municipality shall deliver the Holdback, if
any, to the Company on acceptance of the Work following a two year
maintenance period. If the security is insufficient to compensate the
Municipality for the costs of performing the Company's obligations or
satisfying an amount required to be paid to the Municipality the Company
shall pay the insufficiency to the Municipality forthwith on demand.
Payments to Municipality
1.
The Company covenants and agrees to pay to the Municipality:
a)
all of the usual permit fees associated with the permits that the
Company requires in connection with its Work; and
b)
the fees and charges set out in Schedule "B" with respect to the
administration costs for approval of plans, inspections and
pavement degradation costs in connection its Work.
2.
The fees and charges specified in Schedule "B" shall be adjusted annually
on December 31 of each year for the Term of the Agreement commencing
in 2002, including any subsequent renewal periods in accordance with the
Consumer Price Index (CPI), as set out in the Canadian Economic
Observer published by Statistics Canada. All amounts payable under this
Agreement shall be payable in Canadian currency.
Taxes and Utilities
1.
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 Equipment, including without limitation, those
taxes attributable to the Company's use and occupancy of the Service
Corridors, and for the payment of the cost of all services and utilities
consumed in respect of the Company's operations.
2.
For the purpose of section 20, "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 that relate to the Company's use and
occupancy of the Service Corridors during the Term, and any payments that
are levied in substitution, or in lieu, or in addition to any of the foregoing.
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Late Payment Charges
1.
Payment terms are net thirty (30) days under this Agreement. Overdue
accounts shall be charged interest at the current rate of ten and one half
percent (10.5%) per annum compounded monthly and adjusted quarterly
by the Ministry of Municipal Affairs or at the maximum lawful rate,
whichever is lower.
Abandoned Equipment
1.
The Company shall notify the Municipality promptly when it abandons
Equipment situated in, on, over, under, along or across the Service
Corridors. If the Company ceases to use the Equipment for one (1) year it
shall be deemed abandoned. Upon such notification or deemed
abandonment, the Municipality may thereafter, at any time, require the
Company to remove the said Equipment or part thereof within a specified
period of time, being no less than ninety (90) days from the date of the
Company's notification or deemed abandonment, failing which the
Municipality may at its option remove the Equipment at the Company's
expense or the Equipment and any support structure containing only such
abandoned Equipment shall be deemed to have been abandoned by the
Company and title thereto shall vest in the Municipality.
Excess Capacity
1.
Whenever the Company installs new conduits by open cut along or across
any Service Corridors, 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)
use its best efforts to ensure that any conduits to be
placed in the Service Corridors are sized so as to
accommodate the total estimated future transmission
capacity requirements of the Company during the Term
and any renewals thereof along or across the Service
Corridors;
b)
subject to the mutual agreement of the Company and the
Municipality, use its best efforts to install and make
available to other providers of telecommunications
services or broadcasting, on reasonable terms and
conditions, such additional excess conduit capacity as the
Commissioner may request in writing for the more efficient
administration of the occupancy and use of the Service
Corridors by all Service Providers; and
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c)
at the option of the Municipality, to be exercised at the
time of approval of the Work, install additional conduits on
behalf of the Municipality at the same time as the Work is
installed, at the cost of the Municipality based on the
incremental costs incurred by the Company in installing
the additional conduits, provided that such additional
conduits shall become the property of the Municipality
after the incremental costs are paid.
The Company shall use its best efforts to place its Equipment along
routings previously assigned to Service Providers by the Municipality and in
or along any support structures situated therein.
Third Party Equipment
1.
The Company shall not permit any third party to use any Alignment
occupied or used by the Company under this Agreement, unless the
Company and the third party have entered into an agreement in respect of
such use and such agreement provides that the third party shall comply, at
the third party's sole expense, with all applicable laws, statutes, bylaws,
codes, ordinances, rules, orders and regulations of all governmental
authorities in force, and that the third party shall obtain and maintain any
and all permits, licenses, official inspections or any other approvals and
consents necessary or required for the placement of the third party's
Equipment and/or structures.
2.
In all cases where the Company permits any third party to use any
Alignment occupied or used by the Company under this Agreement or
otherwise 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.
3.
Where a third party is permitted to use any Alignment occupied or used by
the Company under this Agreement, the third party shall not undertake
any Work or excavation in, on, over or under a Service Corridor or
commence any other activity which would cause disruption or
inconvenience to pedestrians or traffic or to the Municipality or the public
in respect of any use of the Service Corridor, without the prior written
consent of the Municipality.
For the purpose of sections 25, 26 and 27 of this Agreement:
a)
a "third party" includes any individual, corporation,
partnership, association, joint venture, or organization of
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any kind, including the lawful trustee, successor, assignee,
transferee or personal representative thereof; and
b)
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.
Term of Agreement
1.
Unless otherwise terminated in accordance with its provisions, the initial
term of this Agreement shall commence on the Effective Date and shall
be five (5) years in duration. Unless the Agreement is otherwise
terminated in accordance with its provisions, it may at the mutual
agreement of both parties be renewed for 2 additional successive terms of
five (5) years duration each. The initial term and the subsequent terms to
the extent applicable shall hereinafter be called the Term.
2.
Despite any term or condition of this Agreement, the Company covenants
and agrees that if the Federal Court of Appeal or Supreme Court of Canada
allow the appeal of the Federation of Canadian Municipalities to the
Canadian Radio-television and Telecommunications Commission's (the
"Commission") January 25, 2001 Decision (Decision CRTC 2001-23), the
parties shall within 180 days of that Decision revise this Agreement to
reflect the Decision of the Federal Court of Appeal or Supreme Court of
Canada, as the case may be, and in the event the parties are unable to
agree on such revisions, the parties agree to seek the assistance of the
Commission in determining the revisions to this Agreement and share the
costs equally of doing so.
Default and Termination
1.
This Agreement may be terminated at any time during the Term by the
mutual written agreement of the Municipality and the Company.
2.
This Agreement may be terminated by the Municipality 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 percent (50%) of any disputed amount
payable pursuant to this Agreement within ninety (90) days of the
date on which the Municipality claims that the payment is due;
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c)
the Company unduly interferes with the public (including Service
Provider) use or enjoyment of the Service Corridors and does not
rectify such interference within thirty (30) days of being notified by
the Municipality 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.
1.
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 or take all reasonable steps to cure the default prior to the expiry of
the one hundred and eighty (180) day period.
2.
Upon termination of the Agreement and in the absence of a new
agreement, subject to the right to appeal to the Commission, the
Municipality may thereafter, at any time, require the Company to remove its
Equipment or part thereof within a specified period of time, being no less
than one-hundred and eighty (180) days from the date of the Company's
notification, failing which the Municipality may at its option remove the
Equipment at the Company's expense, payable upon receipt of invoice, or
the Equipment and any support structure shall be deemed to have been
abandoned by the Company and title thereto shall vest in the Municipality.
Occupational Health and Safety and Traffic
1.
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. The
Municipality may, on twenty-four (24) hours written notice to the Company,
suspend Work performed by or on behalf of the Company on that portion of
the Equipment located in, on, under, along or across Service Corridors if
there appears to be a failure to install such devices or because conditions
of immediate danger exist that would likely result in injury to any person.
Such suspension shall continue until the default or failure is corrected.
Environmental Responsibility
1.
The Municipality is not responsible, either directly or indirectly, for any
damage to property or injury to a person, including death, arising from the
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escape, discharge or release of any hazardous substance from its Service
Corridors, except where caused by the willful misconduct or gross
negligence of the Municipality, or its employees, officers, agents or
contractors. The Company may request copies of any existing
environmental reports that the Municipality may have at the time of
requesting written approval to conduct Work, and the Municipality shall
make reasonable efforts to provide any existing environmental reports at
the time of receiving the written request to conduct Work.
2.
The Company agrees to assume all environmental liability relating to its
occupancy and use of the Service Corridors, including but not limited to any
liability for clean-up of any hazardous substance in, on, under, along,
across and around Service Corridors which results from:
a)
the construction, occupation, operation and removal of the
Company's Equipment in, on, under, along, across or around the
Service Corridors; or
b)
any products or goods brought in, on, under, along, across or around
the Service Corridors by the Company, or by any other person with
the express or implied consent of the Company.
3.
For the purpose of sections 36 and 37, "hazardous substance" means any
hazardous substance and includes, but is not limited to, electromagnetic or
other 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
1.
Subject to the provisions of section 41, the Municipality shall not, in
connection with this Agreement, be liable for any damage to the
Equipment 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 wilful misconduct or negligence of the Municipality or
its employees, officers, agents, or contractors.
2.
The Company hereby indemnifies the Municipality from and against all
losses, liabilities, costs, damages, and expenses (including reasonable
attorneys' fees and disbursements) incurred by the Municipality 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.
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3.
Notwithstanding anything contained in this Agreement, neither the
Municipality nor the Company shall 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 or Service Corridors governed hereby.
4.
Notwithstanding anything contained in this Agreement, the Municipality shall
not be liable to, nor indemnify or save harmless the Company for:
a)
losses or damages, direct or indirect, incurred by the Company in
connection with this Agreement where the Company has not
advised the Municipality in writing of the Company's installation of
Equipment in a Service Corridor or has failed to identify to the
Municipality the correct location of that Equipment in accordance
with the requirements of this Agreement; or
b)
losses or damages, direct or indirect, incurred by the Company
where the Municipality has corrected a default or unsatisfactory
performance of the Company pursuant to the provisions of this
Agreement, provided the Municipality is not negligent in its
corrective action.
Successors and Assigns
1.
This Agreement shall be binding upon and shall enure to the benefit of the
Company and the Municipality 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. 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 Municipality. The Company may not
otherwise assign this Agreement without the advance written consent of
the Municipality, which consent may not be unreasonably withheld,
conditioned, or delayed.
2.
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, and the Municipality may require the assignee to enter into its
own agreement with the Municipality before the assignment becomes
effective.
3.
Despite section 43, the Company may pledge the rights granted by this
Agreement as security without the consent of the Municipality to any
person directly or indirectly providing financing to the Company but such
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pledge shall not release the Company from its obligations and liabilities
under this Agreement.
Non Parties to Agreement
1.
There are no third party beneficiaries contemplated by this Agreement.
Nothing in this Agreement shall be construed as affecting any rights or
otherwise of others not a party to this Agreement to use any Service
Corridors in accordance with the Municipality's legal authority.
No Property Rights
1.
No occupancy or use of the Service Corridors 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 Service Corridors, and the Company shall
be and remain a non-exclusive occupant and user of the Service Corridors.
2.
Placement of the Equipment in the Service Corridors shall not create or vest
in the Municipality any ownership or property rights to the Equipment,
except as specifically provided herein.
Workers' Compensation Coverage
1.
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.
Insurance
1.
The Company shall maintain insurance in sufficient amount and description
as will satisfy the Company's obligations under this Agreement to protect
the Municipality 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
Service Corridors or any act or omission of the Company's employees,
agents, contractors or licensees.
2.
In addition to the foregoing, the Company covenants and agrees that with
respect to the insurance coverage described in section 50:
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;
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b)
the comprehensive general liability insurance shall extend to cover
the contractual obligations of the Company as stated within this
Agreement; and
c)
all 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.
General
1.
Independent Contractors.
The relationship of the Company and
the Municipality 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.
1.
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 (return receipt requested), 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 Municipality:
Corporation of the City of New Westminster
City Hall
511 Royal Avenue
New Westminster, BC
V3L 1H9
Attn: Director of Engineering
Fax: (604) 527-4564
If to the Company:
Attn:
Fax:
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2.
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.
3.
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.
4.
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 endeavour 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.
5.
Counterparts; Original Signature Copies.
This Agreement may be
executed in counterparts, each of which shall be deemed an original.
6.
Time. Time is of the essence in this Agreement.
7.
Governing Law.
This Agreement shall be governed by and interpreted
in accordance with the laws of the Province of British Columbia and the
laws of Canada applicable therein, excluding the conflict of laws
provisions thereof.
8.
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.
9.
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 term "section" refers to a section of
this Agreement, unless explicitly otherwise stated.
10.
Gender, Number and Person.
Words importing the neuter gender shall
include the masculine and feminine genders. In this Agreement, "person"
means 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 person shall include firms and corporations and vice versa.
Words importing the singular shall include the plural and vice versa.
11.
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
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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.
12.
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.
13.
No Rules of Construction.
This Agreement shall not be interpreted
in favour or against a party on the basis of the existence or absence of
legal representation in the case of either party.
14.
Inconsistency with Municipal By-laws.
In
the
event
of
an
inconsistency between this Agreement and any applicable by-law, rule or
regulation of the Municipality in force during the Term of this Agreement,
any such by-law, rule or regulation shall take precedence to the extent of
the inconsistency.
15.
Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter herein and
supersedes all prior agreements, whether oral or written, relating to the
subject matter hereof.
16.
Acknowledgement.
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
____________________________________
Name:
Title:
____________________________________
Name:
Title:
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CORPORATION OF THE CITY OF NEW WESTMINSTER
____________________________________
Mayor
____________________________________
City Clerk
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Bylaw No. 7582, 2013
SCHEDULE "B" FEES AND CHARGES
Plan Approval and Inspection Fees in accordance with City's Fees and
Rates Bylaw No. 7553, 2013.
Pavement Degradation Fees in accordance with City's Fees and Rates
Bylaw No. 7553, 2013.