DRAFT 1. WHEREAS Telecom operates a Telecommunications system within the Boundaries of the Region;

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1 DRAFT 1 THIS AGREEMENT dated the 1999 BETWEEN: The Regional Municipality of Ottawa-Carleton (Hereafter called the Region 20 July 1999 AND: Telecom Systems Inc. (Hereafter called Telecom WHEREAS Telecom operates a Telecommunications system within the Boundaries of the Region; AND WHEREAS Telecom is regulated by the Canadian Radio-Television and Telecommunications Commission to operate within the area designated in Telecom's licence and this area includes all of the land within the Boundaries of the Region; AND WHEREAS Telecom wishes to install and maintain Equipment in, on, under, over, along and across Service Corridors within the Boundaries of the Region; AND WHEREAS the Region is willing to permit the use of Service Corridors where in its judgment, such use will not interfere with its own service requirements and use of the Service Corridors including the consideration of the economy and safety and any rights or privileges previously conferred or hereafter conferred by the Region by contract or otherwise to others not party to this Agreement to use any of the Service Corridors; NOW THEREFORE in consideration of the mutual terms, conditions and covenants contained herein, THE PARTIES AGREE AS FOLLOWS: 1. DEFINITIONS 1.1 In this Agreement, the following words and phrases shall the have the following meanings: Affiliate shall have the meaning given to affiliate by the Business Corporations Act, Ontario and includes, without limitation, a parent company. Agreement means this instrument;

2 DRAFT 2 (c (d (e (f (g (h (i (j (k Attach or Attachment means the use of, or connection to, the Equipment of Telecom by a Third Party; Backbone means all of Telecom s fibre optic cables within the Equipment, exclusive of Lateral Connections. Boundaries means the existing municipal boundaries of the Region; Business Day means any day that is not a Saturday, Sunday or a statutory holiday; Commissioner means the Environment and Transportation Commissioner with responsibilities for Service Corridors within the Region, or the person designated by him or her or such other person as may from time to time be designated by the Council of the Region; Contractors means contractors, subcontractors, workers, suppliers and material men; Dark Fibre means any optic fibres installed by Telecom and licensed to the Region pursuant to the Dark Fibre Licence; Dark Fibre Licence means the licence to the Region, if applicable, of Dark Fibre as set out in Section 7; Employee means: (i with respect to Telecom, any official, officer, employee, Contractor, or authorized agent of Telecom, (ii (iii with respect to the Region, any official, officer, employee, authorized agent or Contractor of the Region but specifically excludes Telecom and any Employee of Telecom; and with respect to the Contractors of the Region or Telecom, any officer, employee or agent of the Contractors; (l (m (n Equipment means Telecom s wires, fibre-optic cables, ducts, conduits, manholes and other accessories, structures and equipment located within the Boundaries; Hazardous substance includes, but is not limited to, electromagnetic or other radiation, petroleum products and byproducts, 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; Lateral Connection means a cable that by its design, capacity and relationship to other cables of Telecom, can be reasonably considered to be for the sole purpose of connecting the Equipment to not more than a single customer or building point of presence (as opposed to being designed so as to, in future, carry multiple customer traffic;

3 DRAFT 3 (o (p (q (r (s (t (u (v (w (x (y Patch Panel means the equipment panel utilized at the distribution point (end of each fibre optic cable for the purpose of organizing, identifying, terminating and distributing individual fibres by means of connectors joining the fibre optic cable to the Patch Panel; Person means any individual, Corporation, partnership, association, joint venture or organization of any kind and the lawful trustee, successor, assignee, transferee or personal representative; Prime Rate means the annual rate of interest established and reported by The Toronto-Dominion Bank from time to time as its prime rate and used as the base or reference rate of interest for the determination of interest rates that The Toronto- Dominion Bank charges to its customers for Canadian dollar loans made in Canada; Private Entity means any person or entity other than a Public Body; Public Body means any governmental body or authority including, without limiting the general scope of this definition and by way of example only, the Region, the provincial government, the City of Ottawa, the federal government and all Crown and municipal corporations, agencies, districts and boards controlled or constituted by a legislative body or council; Service Corridor means highways, streets, road allowances, lanes, bridges and viaducts vested in the Region; Taxes means all taxes, rates, duties, levies, fees, charges, sewer levies, local improvement rates and assessments whatsoever, imposed, assessed, levied or charged now or in the future by any municipal, regional, provincial, federal, parliamentary or other governmental body, corporate authority, agency or commission (including, without limitation, school boards and utility commissions, in connection with the Equipment including, without limitation, any such taxes which are levied in substitution or in lieu of or in addition to any of the foregoing; Telecommunications or telecommunications has the same meaning as under Section 2 of the Telecommunications Act; Term is as defined in Section 2 of this Agreement; Third Party means any individual, Corporation, partnership, association, joint venture or organization of any kind and the lawful trustee, successor, assignee, transferee or personal representative thereof that attaches to Telecom s Equipment under an agreement with Telecom but does not include direct users of Telecom s services; Work means any installation or other alteration of Equipment in, on, under, over, along or across the Service Corridors.

4 DRAFT 4 2. TERM 2.1 This Agreement shall commence upon the date of execution and shall, unless renewed, terminate two (2 years after the first day of the month in which the Agreement is executed. 2.2 This Agreement shall automatically renew for one (1, one (1 year period on similar terms and conditions unless either the Region or Telecom gives written notice of cancellation to the other not less that six (6 months prior to the expiration of this Agreement or any renewal term at which time this Agreement shall terminate and on the day so named in such notice this Agreement and all rights and privileges thereunder shall come to an end. 2.3 Notwithstanding the expiry or termination of this Agreement, the liabilities and obligations of Telecom, its contractors and agents under this Agreement, including all fees and payments shall continue and remain in full force and effect with respect to the Service Corridors used by Telecom until all Telecom s Equipment is removed from the Service Corridors or becomes the property of the Region pursuant to subsection USE OF THE SERVICE CORRIDORS 3.1 The Region hereby grants to Telecom a non-exclusive licence to enter upon and use the Service Corridors for the purpose of installing, operating, maintaining and removing the Equipment subject to the terms and conditions contained in this Agreement and in accordance with all federal, provincial and municipal statutes, laws and by-laws or other rules and regulations pertaining to the application and use of the Service Corridors or the Equipment. 3.2 Telecom agrees that its use of the Service Corridors shall not unduly interfere with the public use and enjoyment of the Service Corridors. 4. APPROVAL OF LOCATION AND INSTALLATION 4.1 Telecom shall not install any of its Equipment in, on, under, over, along or across a Service Corridor without providing to the Commissioner complete drawings and other materials as are reasonably required by the Commissioner setting out the location and method of construction of the Equipment in the Service Corridor and obtaining the written approval of the Commissioner with regard to the proposed location of the Equipment in, on, under, over, above and across the Service Corridor. 4.2 Prior to commencing work of any kind in, on, under, over, along or across a Service Corridor including the installation, maintenance and removal of its Equipment, Telecom shall obtain the prior written approval for such work from the Commissioner and the Commissioner may establish the terms and conditions under which such work may be undertaken by Telecom. As a condition of such approval, the Region may, at its sole discretion, require that Telecom submit detailed engineering plans to the Commissioner with respect to the work to be conducted in a Service Corridor. 4.3 Telecom undertakes and agrees with the Region, that it shall, at the request of the Commissioner, from time to time, submit such information as may reasonably be required by the Commissioner for the purpose of joint utility co-ordination between Telecom and other users of

5 DRAFT 5 the Service Corridors, to indicate the scope and proposed locations of planned work contemplated by Telecom and the areas of the Region in which it plans to undertake construction from time to time. The Region agrees that it shall, at the reasonable request of Telecom, provide information to Telecom on its planned Service Corridor work activities. 4.4 Telecom shall provide annually, on or before September 1 st, to the Region a report listing the Equipment installed by it, or on its behalf, in the Service Corridors in the twelve months immediately preceding this report. 5. EXCESS CAPACITY 5.1 Except for Lateral Connections and except when waived by the Commissioner, Telecom will, when installing new conduits by open cut along or across a Service Corridor, install over and above its own planned requirement as excess capacity one (1 four (4 inch conduit with three (3 1¼ inch inner ducts, or the equivalent thereof as approved by the Commissioner. 5.2 Telecom agrees to make such excess capacity available on a competitively neutral, nondiscriminatory basis for use by Third Party telecommunications carriers and distribution undertakings licensed by the Canadian radio-television and Telecommunications Commission (the CRTC and which have entered into a Municipal Access Agreement with the Region. 5.3 Subject to CRTC requirements, use by Third Parties of Telecom s excess capacity shall include the following conditions: a Telecom may set and charge an annual license fee to such Third Parties for the use of excess capacity and any such fee, charged on a linear unit basis per inner duct shall not be greater than the proportionate amount required to recover Telecom s costs of installing and maintaining the spare capacity plus other incremental costs recoverable by Telecom, plus an additional cost of fifteen percent (15% for overhead and administration. b If Telecom elects to install cables in the excess capacity for Third Parties to the specifications of Third Parties, Telecom may charge a fee for this installation that is limited to Telecom s actual, direct cost of performing the installation plus a reasonable amount for profit and overhead. c Telecom shall on an annual basis provide the Region with a list of Third Parties using excess capacity. d Excluding laterals, all cables installed by Telecom shall contain a minimum of twentyfour (24 strands of fibre. e For the Access Fee, Telecom may install within a two (2 metre wide corridor a maximum of sixteen (16 one and a quarter inch inner ducts in a maximum of four (4 four inch outer ducts or equivalent as approved by the Commissioner. The maximum of sixteen (16 inner ducts includes both the capacity Telecom requires for its own use and the excess capacity.

6 DRAFT 6 f Telecom may apply to the Commissioner to exceed the maximum specified in subsection 5.3(e and approval of such a request shall be at the sole discretion of the Commissioner. g Telecom shall maintain all excess capacity and associated access points used by Third Parties to the same standards it employs for the maintenance of Equipment utilized by Telecom. 5.4 At the option of the Region, to be exercised at the time of approval of the Work, Telecom agrees that in addition to the requirements of subsection 5.1 it will install additional ducts on behalf of the Region at the same time as the Work is installed. Should the Region exercise this option, the costs of the additional ducts will be the responsibility of the Region and be based on the incremental costs incurred by Telecom in installing the additional ducts. The additional ducts will become the property of the Region. 6. MANNER OF WORK 6.1 All Work conducted by Telecom in a Service Corridor including installation, maintenance and removal of its Equipment, shall be subject to the following conditions: (c (d all Work shall be conducted and completed to the satisfaction of the Commissioner in accordance with the Region s standards and regulations. Telecom undertakes and agrees that it will construct, operate and maintain its Equipment in accordance with good engineering practice and applicable government standards; if Telecom breaks the surface of a Service Corridor, it shall repair and reinstate the surface of the Service Corridor to substantially the same condition it was in before such Work was undertaken by Telecom and to the satisfaction of the Commissioner in accordance with the Region s standards and Regulatory Code as amended from time to time or any successor by-law regulating the entry upon and re-instatement of highways. Telecom shall, at its own expense, maintain that portion of the Service Corridor by repairing any settling caused by Telecom s Work in the Service Corridor in accordance with the Regulatory Code. If Telecom fails to repair and re-instate a Service Corridor within ten (10 days of being notified by the Region, to the satisfaction of the Commissioner, the Region may effect such repairs and charge all costs related thereto to Telecom which costs may be collected as if the costs were arrears of taxes. The Region shall not be liable for any damage of any nature and kind caused to Telecom and its Equipment by reason of the work undertaken by the Region pursuant to this paragraph except damage caused by the gross negligence of the Region, and Telecom hereby undertakes to indemnify and save harmless the Region therefrom. if the Region requires the installation, maintenance or removal of the Equipment to be stopped for any reason, Telecom shall cease all such installation, maintenance or removal of the Equipment forthwith upon receipt of such stop work notice from the Region. The Commissioner shall provide written reasons for issuing the stop work notice to Telecom within 24 hours; Telecom is responsible for all installation, maintenance and removal of the Equipment including the cost of such work;

7 DRAFT 7 (e (f in the course of constructing, maintaining and repairing the Equipment, Telecom shall take such steps as shall reasonably be required to protect all equipment already installed in the Service Corridors. Telecom agrees to indemnify and save harmless the Region from any claims, demands, causes of action, loss, costs or damages that the Region may suffer, incur or be liable for resulting from the construction, maintenance or repair of the Equipment by Telecom; after completion of any Work related to the installation, maintenance, repair, replacement or removal of the Equipment, Telecom shall leave the Service Corridors in a sanitary, neat, tidy and safe condition and free from nuisance, all to the satisfaction of the Commissioner. 6.2 Telecom covenants and agrees that: (c (d (e (f ownership and title to the Service Corridors are vested in the Region; use of a Service Corridor under this Agreement shall not create or vest in Telecom any ownership or property rights in a Service Corridor and Telecom shall be and remain a non-exclusive licencee of the Service Corridor; Telecom 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 Region in any real or personal property registry under or by virtue of Telecom's use of the Service Corridors or this Agreement; Telecom shall not permit any lien to be filed or registered against the Service Corridors directly resulting from the operation or activities of Telecom. Within thirty (30 days following notice from the Region to Telecom of the existence of a lien, Telecom shall commence the process of removing the lien from the title to the Service Corridors and shall diligently pursue its removal; if this Agreement is terminated by the Region, any unfulfilled covenants, indemnities and obligations of Telecom hereunder shall survive such termination; the Region has made no representation or warranties as to the state of repair of the Service Corridors, the suitability of the Service Corridors for any business, activity or purpose whatsoever or the presence or absence of hazardous substances on or under the Service Corridors and Telecom hereby agrees to use the Service Corridors at its own risk, on an as is basis. 6.3 Telecom agrees that, wherever feasible, it will use the existing plant of other entities occupying the Service Corridors for the installation and maintenance of the Equipment so as not to further encumber the Service Corridors with additional and unnecessary Equipment. Telecom acknowledges and agrees that if the Equipment is installed in the existing plant of other entities or the Region, all terms and conditions of this Agreement will continue to apply to the Equipment.

8 DRAFT The Region acknowledges that, subject to this Agreement, Telecom owns the Equipment. 6.5 Subject to provisions of the Region s Regulatory Code, Telecom shall, within two (2 months of completing the installation of any Equipment, provide two copies of "as built" drawings to the Region sufficient to accurately establish the location, elevation and distance of the Equipment in a manner consistent with the level of detail and accuracy provided to the Region by similar utilities. One copy of the drawings shall be in an electronic format acceptable to the Commissioner and requested of all utilities using the Service Corridors and one shall be a hard copy drawing. 6.6 Telecom shall, at no cost to the Region, provide locations of its Equipment within forty-eight (48 hours of receiving a request by the Region. However, in the case of an emergency, Telecom shall provide the locations of its Equipment as soon as practicable upon receiving a request from the Region. 6.7 Telecom agrees to apply for and maintain membership in the public utilities co-ordinating committees of the Region and all other municipalities within the Region and to bear a share of the costs related to the operation of any utility plan registries maintained in connection with the work of these committees. Telecom s share of these costs shall be based on its percentage of the total costs for maintaining the plan registries which are applicable to all public utility coordinating committee members plus the actual cost per unit to incorporate Telecom s as-built revisions. 6.8 Telecom shall provide to the Commissioner a list of 24 hour emergency personnel for Telecom and shall ensure that this list is always current. 7. DARK FIBRE LICENCE Lateral Connections 7.1 Notice of Intent - As soon as Telecom decides to construct a Lateral Connection, then it will immediately notify the Region of its intent, but in no event later than thirty (30 calendar days prior to the initiation of construction or trenching. Telecom shall not be in breach of this Agreement if it fails, due to inadvertence or oversight, to inform the Region pursuant to this subsection. For greater certainty, this does not remove Telecom s obligation to secure any and all prior approvals under this Agreement with respect to construction. 7.2 Exercise of Region s Piggy-Back Rights - When the Region has received a notice from Telecom under subsection 7.1 above with respect to a Lateral Connection, the Region has thirty (30 calendar days to give notice to Telecom that it wishes to have Telecom install fibre on its behalf with the installation of the Lateral Connection, failing which the Region s rights under this subsection may not be exercised with respect to that particular Lateral Connection. 7.3 Terms of Piggy-Back Rights - The Region must specify in its notice, the type and number of fibre(s that it wishes to have Telecom install on its behalf concurrently with installation of the Lateral Connection. Telecom and the Region will agree on the manner in which the Region s fibre will be incorporated into the Lateral Connection and the Region will pay the incremental costs incurred by Telecom, as a result of the Region s participation, as well as a proportionate

9 DRAFT 9 share of any right-of-way/access costs, if any, associated with the Lateral Connection. Dark Fibre Licence 7.4 Backbone Licence- The Region may at the time of an approval request a Dark Fibre Licence for Backbone as part of the consideration for the Region permitting Telecom to access its Service Corridors on the basis of the terms and conditions set out in this section and subject to the Region and Telecom entering into mutually agreeable and appropriate facilitating agreements. 7.5 Lit Fibre Services - As part of the consideration for the Region permitting Telecom to access its Service Corridors, Telecom hereby offers to the Region, at the Region s option, the opportunity to acquire any one or more of the lit fibre services offered by Telecom from time to time with the terms and conditions of such services including financial terms being as good as the best industry price generally available in the Region at that time. During the month of January of each year, Telecom shall review all agreements with the Region and adjust the terms and conditions of such agreements so that the terms and conditions are as good as the best industry price generally available in the Region at that time. 7.6 Term of Licence - If the Dark Fibre Backbone Licence option is selected by the Region, the term of the Dark Fibre Licence commences on the date the Dark Fibre Licence option is exercised by the Region and shall be coterminous with the term of this Agreement. 7.7 Fibre Included in Licence - The Dark Fibre Licence will consist of the sole and exclusive use of the Dark Fibre as well as indirect access to those portions of the facilities leased from third parties which are necessary for the carriage, protection or housing of the Dark Fibre. 7.8 Fibre Included in Licence - Except as otherwise provided herein, the Dark Fibre which may be requested by the Region at the time of an approval consists of a maximum of 8 strands of optic fibres within a cable of 96 or more strands and a maximum of 4 strands within other cables from such points of interconnection as the Region may designate within the Equipment adjacent to buildings or facilities that the Region wishes to interconnect by such Dark Fibre and running through the Equipment. Telecom shall have the right to designate the route through the Equipment that such Dark Fibre shall take to interconnect the points of interconnection. Subject to subsection 7.11, the Region will be responsible for all Lateral Connections between the points of interconnection in the Equipment to the Region s buildings. 7.9 Fibre Included in Licence - The Region shall have the right to increase the Dark Fibre request from 4 or 8 strands of optic fibre up to 24 strands of optic fibre, provided that: i there is capacity in the existing Equipment to accommodate the increase; ii iii the Region s requests are made once annually; and in no event shall Telecom be obligated to supply more linear metres of Dark Fibre, at any time, than (the number of strands of optic fibres as noted above X (the number of metres of Equipment installed by Telecom at such time provided that if Telecom does not choose the shortest route through the Equipment to interconnect the points of interconnection requested by the Region then, for the

10 DRAFT 10 purposes of this Section, the shortest Equipment route, as opposed to Telecom s chosen route, shall be used for the determination of the supply of linear metres of Dark Fibre Licence Protected - Except as otherwise provided in this Agreement, Telecom may not terminate the Dark Fibre Licence for any reason, and now expressly limits its rights and remedies against the Region for any breach of the Region s obligations to, in respect of the Dark Fibre Licence only, injunctive relief and damages Lateral Connections -The Dark Fibre Licence pertaining to the Backbone shall not include any Lateral Connections, unless agreed to by Telecom. If the Region wishes Telecom to construct a Lateral Connection on behalf of the Region, it will do so and the Region will reimburse Telecom for its reasonable and actual costs of doing so, with no mark up for profit. Any such Lateral Connection shall, if desired by the Region, include the installation of Patch Panels required and used by the Region Use of Dark Fibre - The Dark Fibre Licence is exclusive to the Region, and Telecom may not make use of the Dark Fibre whatsoever or grant any other rights to the use of the Dark Fibre Municipal Purposes Only - Subject to subsection 7.14, the Region may only use the Dark Fibre for municipal purposes and activities which the Region and the City of Ottawa (the City as municipal corporations are lawfully required, permitted or authorized to carry out. In this paragraph, municipal purposes and activities means the usual and customary activities and purposes of the Region, the City and local boards of the Region and the City as adapted from time to time to new technology (including Dark Fibre and changes in municipal law and practice in Ontario Commercial Use Prohibited - Despite subsection 7.13, and regardless of whether the Region is currently or in the future might be permitted to do so, the Dark Fibre may not be used for any activity or purpose which has as its predominant purpose or effect the generation of profit for the Region by the sale, lease, licence or other arrangement by which access to or use of the Dark fibre is given or granted to third parties (including the general public Examples for greater certainty - For greater certainty, and without limiting the general scope of subsections 7.13 and 7.14, the following are examples of how the parties intend subsections 7.13 and 7.14 to be interpreted: (i (ii (iii The internal transfer of information between a department of the Region and/or the City s departments and local boards is permitted. The transfer of information between a department of the Region and or a City department and/or a local board and a public union representing the Region s Employees or Regional Employees is permitted. The transfer of information between a department of the Region and/or a City department and/or a local board and another Public Body is permitted so long as neither the Region, the City, local board nor the Public Body uses the Dark Fibre to transmit information to, or receive information from, points beyond their respective point of

11 DRAFT 11 connection. (iv (v The transfer of information between the Region and/or the City and/or a local board and the general public is permitted so long as the use is in connection with customarily performed business of the Region and/or the City and/or a local board and neither the Region, the City, the local board or the general public uses the Dark Fibre to transmit information to, or receive information from, beyond their respective point of connection. For the purposes only of implementing the disaster recovery plan for the Region and/or the City and any command centre related thereto Breach of Use Restrictions - In the event that the Dark Fibre is used by the Region and/or the City in breach of subsection 7.13, 7.14 or 7.15, the Region will reimburse Telecom for the fair market value of the use to which the Dark Fibre is put by the Region and/or the City in breach of these Sections during the period of the breach Dark Fibre Maintenance/ Specifications - Telecom will, at its sole cost, maintain the Dark Fibre and any Lateral Connections installed pursuant to subsection 7.11 to the same standards and specifications as the remainder of the Equipment. The parties agree to enter into a further agreement at the time the Dark Fibre Licence option is exercised to address issues related to technical standards, maintenance obligations and response times for the Dark Fibre and Lateral Connections General Rules Regarding Connections - Subject to the other terms of this Agreement, neither party may connect any of its optic fibre or electronic equipment to the other party s optic fibre or electronic equipment, unless otherwise agreed to and approved in writing by both parties Telecom to Splice to Dark Fibre - Telecom will, at its sole cost, and within fourteen (14 calendar days of a written request from the Region to do so, make a one time per fibre strand hard-splice of a lateral connection of the Region to the Dark Fibre and test the optic fibre and then immediately notify the Region of successful completion End Points - The Region, at its sole cost, will hard-splice all of the lateral connection fibre of the Region and ensure that it is terminated in a Patch Panel which is in compliance with subsection Compatible Patch Panels - The Region will only use Patch Panels that are compatible with the Patch Panels used by Telecom on the Equipment. To the extent that Telecom subsequently upgrades or alters the type of Patch Panel it uses, with the result that the Patch Panels of the Region cease to comply with this Section, the Region agrees to upgrade or alter its Patch Panels and Telecom will immediately reimburse the Region for its reasonable costs of doing so Inspection - Either Telecom or the Region may, upon giving reasonable advance notice to the other, and escorted by the other party or its authorized representative, verify all Patch Panels used by the other party in conjunction with the Equipment or the Dark fibre, as the case may be.

12 DRAFT DARK FIBRE WARRANTY 8.1 Telecom represents and warrants that, if the Region elects to accept the Dark Fibre Licence pursuant to subsection 7.4: (c (d (e (f it has or will acquire prior to completion of each phase good and marketable title to the Dark Fibre, giving Telecom full legal right to licence the Dark Fibre to the Region in accordance with the Dark Fibre Licence; the Dark fibre will be kept free and clear of all liens, charges and encumbrances of any kind which might interfere with Telecom s obligations under this Agreement, the Dark fibre will be delivered to Telecom with the intellectual property rights (Including all copyrights, moral rights and patent rights necessary to permit Telecom to freely own and licence it to the Region, the Dark Fibre will be manufactured and installed with reasonable workmanship and materials, the Dark Fibre will be free of defects, imperfections or bad workmanship or material, and upon the request of the Region, it will provide the documents evidencing the transfer of title in and to the Dark Fibre to Telecom, to the satisfaction of the Regional Solicitor, acting reasonably. 9. ENVIRONMENTAL RESPONSIBILITY 9.1 The Region 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 Service Corridors. 9.2 Telecom agrees to assume all environmental liabilities relating to its use of the Service Corridors including but not limited to any liability for clean-up of any Hazardous Substance on or under the Service Corridors which result from: the operations of Telecom in, on, under, along or across the Service Corridors, or any products or goods brought in, on, under, along, or across the Service Corridor by Telecom, its agents or Employees or by any person with the express or implied consent of Telecom. 10. RELOCATION OF EQUIPMENT 10.1 Upon receipt of forty-five (45 days written notice from the Region, Telecom shall commence and diligently work to relocate or adjust its Equipment within a Service Corridor. Telecom s relocation or adjustment shall be at its own expense if the Region s request is for municipal purposes.

13 DRAFT In an emergency where public health and safety are affected, the Region, having first attempted to contact Telecom, may take any measures it deems necessary for public safety with respect to the relocation or adjustment of the Equipment at Telecom s expense. The Region shall not be liable for any damage of any nature caused to Telecom by reason of such relocation or adjustment and Telecom hereby indemnifies and saves harmless the Region therefrom If Telecom fails to complete the relocation or adjustment of the Equipment in accordance with subsection 10.1 or fails to repair the Service Corridors or do anything else required of Telecom pursuant to this Agreement in a timely and expeditious manner to the satisfaction of the Commissioner, the Region may, but is not obligated to, at its option complete such relocation, adjustment, or repair and Telecom shall pay the cost of such to the Region forthwith plus an overhead equal to fifteen (15% per cent of such cost and in default of payment thereof, the amount of such cost with interest at the rate of two per cent (2% per annum above the Prime Rate shall be due and payable by Telecom upon receipt by Telecom of an invoice setting out such cost and interest The Region will make a good faith effort to provide alternative suggestions for re-routing the Equipment affected by the relocation or adjustment to assist Telecom in its efforts to facilitate the uninterrupted provisions of services to its customers. 11. LIABILITY AND INDEMNIFICATION 11.1 Except in cases of its gross negligence, the Region shall not be responsible, either directly or indirectly, for any damage to the Equipment that may occur during its installation, maintenance or removal by Telecom, nor is the Region liable to Telecom, except in cases of its gross negligence, for any losses, claims, charges, damages and expenses whatsoever suffered by Telecom including claims for loss of revenue or loss of profits, on account of the actions of the Region, its agents or Employees, working in, under, over, along, upon and across its highways and Service Corridors or other property owned by the Region Telecom covenants and agrees to indemnify and save harmless the Region, its agents, officers, elected officials, Employees and assigns from and against all losses, claims, including a claim for injurious affection, charges, damages and expenses which the Region may at any time or times bear, sustain or suffer, by reason, or on account of the placement, installation, relocation, maintenance or use of the Equipment in, on, under, over, along or across a Service Corridor, and Telecom will, upon demand and its own sole risk and expense, defend any and all suits, actions or other legal proceedings which may be brought or instituted by third persons against the Region on any such claim, demand or cause of action, and will pay and satisfy any judgment or decree which may be rendered against the Region in any such suit, action or other legal proceeding and will reimburse the Region for any and all legal expenses incurred in connection therewith. Telecom s obligation to indemnify and save harmless the Region shall survive the termination of this Agreement. 12. INSURANCE 12.1 Telecom shall maintain insurance in sufficient amount and description as will protect Telecom and the Region from claims for damages, personal injury including death, and for claims from

14 DRAFT 14 property damage which may arise from Telecom s operations within the Boundaries of the Region under this Agreement, including the use or maintenance of the Equipment on or in the Service Corridors or any act or omission of Telecom s agents or employees while engaged in the work of placing, maintaining, renewing or removing the Equipment and such coverage shall include all costs, charges and expenses reasonably incurred with any injury or damage In addition to the insurance requirements contained in subsection 12.1, Telecom covenants and agrees that: (c (d the limits of liability for Personal Injury, Death, Bodily Injury and Property Damage, including loss of use thereof, combined shall be for not less than Two Million ($2,000, Dollars for each occurrence; the Comprehensive General Liability Insurance shall extend to cover the contractual obligations of Telecom as stated within this Agreement, shall be in the name of Telecom and shall name the Region as an additional insured thereunder; all policies shall provide that they cannot be canceled, lapsed or materially changed without at least thirty (30 days notice to the Region by registered mail; and evidence of insurance satisfactory to the Region s Insurance Administrator shall be provided prior to the execution of this Agreement by the Region. 13. THIRD PARTY ATTACHMENTS 13.1 Telecom shall provide promptly to the Region: the names and addresses of all Third Parties who propose to attach or are attached to its Equipment; and the location of all proposed and existing Third Party Attachments to Equipment; 13.2 Telecom may allow a Third Party to Attach its Equipment and to charge and recover a fee from the Third Party provided: the Third Party has entered into a Municipal Access Agreement with the Region; and Telecom does not charge a fee for the Third Party s use of the Service Corridors. 14. ACCESS FEES 14.1 Telecom covenants and agrees to pay to the Region upon execution of this Agreement an annual access fee to cover the costs incurred by the Region which arise from Telecom s installation of its Equipment, its presence in the Service Corridor, and the costs of the approval and administration of the Agreement, and the fee shall be paid regardless of whether any Equipment has been installed. This fee shall be in the amount of Dollars per annum plus applicable federal Goods and Services and any other applicable tax.

15 DRAFT For greater certainty, the fees identified above and all other amounts payable by virtue only of this Agreement are in addition to, and not in lieu of, all amounts generally applicable to Private Entities which may be lawfully imposed on Telecom by a Public Body including permit fees and charges, and realty, business and gross receipt taxes. In the event that the Service Corridors are assessed in the future as a result of Telecom s use of the Service Corridors, Telecom agrees to indemnify the Region for any taxes due and payable by the Region as a result of this assessment For greater certainty, Telecom is not liable to pay any encroachment fees under the Region s Regulatory Code for installations permitted under this Agreement Telecom or the Region will pay simple interest at the Prime Rate plus two percent (2% per annum on all amounts required to be paid under this Agreement, from the due date until payment in full, both before and after judgment All amounts payable under this Agreement shall be payable in Canadian currency Except as otherwise provided in this Agreement, all amounts set out in this Agreement are exclusive of Taxes. All applicable goods and services taxes, provincial sales taxes and any and all other value added, sales or other transaction taxes attributable to the licence granted by this Agreement or the fees paid by Telecom pursuant to this Agreement are recoverable under this Agreement in the same manner as the amounts on which they are based. 15. LEGISLATIVE CHANGE 15.1 If at any time subsequent to the parties entering into this Agreement: the provincial or federal government or a regulatory authority, acting within its jurisdiction, enacts or repeals any legislation or regulation, or orders, directs or mandates anything which pertains to Telecom s use of the Service Corridor or to the subject matter of this Agreement; or there is rendered any decision of a court of final appeal or tribunal which pertains to Telecom s use of the Service Corridor or to the subject matter of this Agreement; then either party may notify the other of its intention to require the other party to enter into good faith negotiations to amend this Agreement or to enter into a new agreement reflecting such legislative or regulatory action or court or tribunal decision, as the case may be, within (30 days after written notice (the Notice from the notifying party and any newly permitted charges or fees pursuant to such new or amended agreement will take effect from the date upon which the Notice expires If the parties are unable to renegotiate the terms and conditions of this Agreement under Section 15.1, then the unresolved matters may, within thirty (30 days prior written notice from the requesting party, be referred by the party to arbitration for resolution, in accordance with Section 19 of this Agreement. Subject to the right to request arbitration, if an amendment or new agreement is not reached within ninety (90 days from the date on which Notice was received, either party may terminate this Agreement without further notice and both parties shall fulfill their respective obligations thereafter in accordance with this Agreement.

16 DRAFT TERMINATION 16.1 If the Region defaults in any of its obligations under this Agreement and fails to correct the default with sixty (60 days or fails to commence correcting the default within sixty (60 days and complete the correction within a reasonable time after notice of it from Telecom, Telecom may, at its option, and after notice to the Region: (c terminate this Agreement; perform the obligation at the Region s expense; or take action for an order of specific performance directing the Region to fulfill its obligations under this Agreement, and, if successful, all legal costs related to such Court action shall be paid by the Region to Telecom on a solicitor/client basis If Telecom defaults in any of its obligations under this Agreement and fails to correct the default within sixty (60 days of written notice from the Region or fails to commence correcting the default within sixty (60 days of written notice from the Region and fails to complete the correction within a reasonable time after the written notice is received, the Region may, at its option, after written notice to Telecom: terminate this Agreement in the event of a default identified in subsection 16.3; (c perform the obligation at Telecom s expense; or take action for an order of specific performance directing Telecom to fulfill its obligations under this Agreement and if successful, all legal costs related to such court action shall be paid by Telecom to the Region on a solicitor/client basis The following events shall constitute an event of default on the part of Telecom permitting the termination of this Agreement pursuant to paragraph 16.2: if Telecom defaults in the payment of any amounts payable pursuant to this Agreement; or if there is filed by or against Telecom in any court an uncontested petition in bankruptcy or insolvency or for reorganization or for the appointment of a liquidator of Telecom s property, or if Telecom makes an assignment or petitions for or enters into an arrangement for the benefit of creditors and any such petition remains undismissed after thirty (30 days or stayed on appeal In the event of termination of this Agreement by expiry of its Term or otherwise, or in the event of abandonment, pursuant to subsection 16.5, the Region may, at its option, decide whether the conduits, manholes, handholes, vaults and other Equipment that cannot be removed without significantly disturbing the Service Corridor shall: a remain in the Service Corridors in which case they will be surrendered by Telecom and become the absolute property of the Region; or

17 DRAFT 17 b be removed from the Service Corridor by Telecom within a reasonable period of time and the Service Corridor restored to its pre-removal condition. Failing removal and restoration by Telecom within sixty (60 days, the Region may complete the removal and restoration, charge all costs to Telecom and ownership of the conduits and manholes will vest in the Region without compensation Whenever Telecom ceases to use and will not in future use ( abandons any portion of the Equipment in, on, under, over, along or across a Service Corridor, it shall within thirty (30 days of such abandonment file with the Region a statement in writing giving in detail the location of the equipment that has been abandoned. 17. WORKERS SAFETY AND INSURANCE BOARD 17.1 Telecom shall pay to the appropriate provincial Board/Commission all assessments and levies owing to the Board/Commission by Telecom, its Employees and others engaged in providing services under this Agreement and any unpaid assessment or levy shall be the sole responsibility of Telecom Prior to commencing the Work, Telecom shall provide to the Commissioner evidence of compliance with the requirements of the Province of Ontario with respect to Workers Compensation Insurance Telecom acknowledges that out-of province contractors are not exempt from having to register and comply with the requirements of the Workers Safety and Insurance Board of Ontario. Prior to commencing the Work, out-of province contractors not required to be registered in Ontario shall provide: written confirmation from the Workers Safety and Insurance Board of Ontario stating that the contractor is not required to be registered in Ontario, and evidence of compliance with the requirements of the province or territory or place of business with respect to workers compensation insurance At any time during the term of this Agreement, when requested by the Region, Telecom shall provide such evidence of compliance by itself and its Subcontractors. Failure to provide satisfactory evidence in respect of workers compensation insurance shall result in future permits being denied by the Region until satisfactory evidence of compliance has been received by the Commissioner. 18. OCCUPATIONAL HEALTH AND SAFETY 18.1 Telecom and Telecom s Employees shall conform to all health and safety laws including any regulations requiring installation or adaptation of safety devices or appliances. The Region may, on twenty-four (24 hours written notice to Telecom, suspend Work by Telecom on that portion of the Equipment located on Service Corridors if there appears to be a failure to install such devices or because conditions of immediate danger exist that would be likely to result in injury to any person. The suspension will continue until the default or failure is corrected.

18 DRAFT ARBITRATION 19.1 In the event of any dispute or disagreement between the parties hereto as to the meaning or interpretation of anything contained in this Agreement or as to the performance or nonperformance hereof or as to the respective rights and obligations of the parties hereunder, either of such parties may refer such dispute or disagreement to arbitration under the provisions of subsection Whenever the Municipal Arbitrations Act, R.S.O. 1990, c. M.48 shall extend and apply to the Region, any reference to arbitration pursuant to the provisions of subsection 19.1 shall be to the Official Arbitrator appointed under the Act and shall be governed by the provisions of the Act. At any other time, the procedure upon an arbitration pursuant to the provisions of subsection 19.1 shall be as follows: Within twenty (20 days after the written request of either of the parties hereto for arbitration, each of them shall appoint one arbitrator and the two so appointed shall, within twenty (20 days after the expiration of the twenty day period select a third. In case either of the parties hereto fail to name an arbitrator within twenty (20 days after the written request for arbitration, the arbitrator appointed shall be the only arbitrator. In case the two arbitrators so appointed are unable to agree on a third arbitrator within twenty (20 days after the expiration of the first twenty day period mentioned above, application shall be made as soon as reasonably possible to any Judge of the Superior Court of Justice for the appointment of a third arbitrator. The arbitrator or arbitrators so appointed shall have all the powers accorded arbitrators by the Arbitrations Act, R.S.O. 1990, c. A.24 as from time to time amended, or any Act in substitution therefor. The decision of the said arbitrator or arbitrators (or of a majority of such arbitrators shall be final and binding on the parties hereto. 20. NOTICE 20.1 Any notice required or permitted to be given hereunder or any tender or delivery of documents may be sufficiently given by personal delivery or, if other than delivery of an original document, by facsimile transmission to the Region at the following address: The Regional Municipality of Ottawa-Carleton 111 Lisgar Street Ottawa, Ontario K2P 2L7 Attention: Regional Clerk and to Telecom at the following address: Telecom Systems. xxxxxxxxxxxxxxxxxxxxxx Attention: xxxxxxxxxxxxx Fax Number: xxxxxxxxxx

19 DRAFT 19 Any notice may also be given by prepaid registered mail and such notice shall be effective five (5 days following the date of mailing, except in the event that there shall be a disruption in postal services at the date of mailing, in which case notice shall be effective by personal delivery or a facsimile transmission as stated above. 21. Assignment 21.1 This Agreement may be sublicensed, granted, transferred or assigned: a by the Region and Telecom in its entirety, to a single sublicencee, grantee, transferee or assignee by either party with the other s prior consent in writing, which consent shall not be unreasonably withheld; or b by Telecom in part, i upon first having given notice to the other party of the sublicence, grant, transfer or assignment; and ii provided the sublicencee, grantee, transferee or assignee is an Affiliate of Telecom Any sublicencee, grantee, transferee or assignee shall be bound by the provisions of this Agreement as they relate to the interest sublicensed, granted, transferred or assigned and Telecom shall provide a true copy of any sublicence, grant, transfer or assignment to the Region immediately upon execution of same Telecom may assign this Agreement as security without the consent of the Region to any person directly or indirectly providing financing to Telecom but the assignment shall not release Telecom from its obligations and liabilities under this Agreement. 22. GENERAL 22.1 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 corridor in accordance with the Region s legal authority This Agreement forms the entire agreement between the Region and Telecom and there are no conditions, warranties or representations, express or implied, with respect to this Agreement or affecting the rights of the parties other than as are specifically contained in this Agreement. No collateral agreement shall be binding upon the parties unless it is endorsed in writing by the duly authorized representatives of the parties This Agreement shall enure to the benefit of and be binding upon the Region and Telecom and their successors and assigns Any term, condition or provision of this Agreement, which is or shall be deemed to be void, prohibited or unenforceable, shall be severable and be ineffective to the extent of such voidance,