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Home My WebLink About03 108 agree frank pearce trail .e e e e ! , TIlE CORPORATION OF TIlE MUNICIPALITY OF KINC~INE .or ! ! i , ! BY-LAW ! I I A BY-LAW TO AUTHORIZE THE SIGNIN~ OF AN AGREEMENT TO ESTABLISH A PORTION OF T E KINCARDINE TRAIL OVER PROPERTY OWNED BY FRANK PEARCE I I WHEREAS Section 11 (2) of the Municipal Act, 2001, S.D. 2001, c. 25 as amended bestows upon local municipalities the power to pass ~y-laWS under the sphere of jurisdiction of culture, parks, recreation and heritage; NO. 2003 - 108 AND WHEREAS the Council for The Municipality of Kincardine eems it advisable to continue its recreational hiking trail system in the unicipality of Kincardine by entering into an agreement with Frank Pearce to stablish a portion of the Kincardine Trail over his property located at 667 earce Lane, former Town of Kincardine, now the Municipality of Kincardine; ! NOW THEREFORE the Council for The Corporation of th~ Municipality of Kincardine ENACTS as follows: ! ! 1. That the Corporation of the Municipality of Kincardine enter 'nto an agreement with Frank Pearce in order to allow for the continuation of t e Kincardine Trail System over his property, known municipally as 667 Pear Lane and more particularly described in the agreement attached to this By-law as Schedule "A". ! 2. That the Mayor and CAO be authorized to sign, on behalf 0' The Corporation of the Municipality of Kincardine, the agreement with Frankl Pearce, attached to this by-law as Schedule "A". I 3. This By-law shall come into full force and effect upon its fin,1 passage. 4. This By-law may be cited as the "Kincardine Trails (Pearce) Agreement, By- ~~ I I READ a FIRST, SECOND and THIRD TIME and DEEMED Tol BE PASSED this 6th day of August, 2003. I I -"--- ::.-- Clerk · ! , I , 1 TIDS LICENCE AGREEMENT made as of(p+l< day of 4~jw+-, 2003 BETWEEN: Frank Pearce (herein called the "Owner") -and- the Municipality of Kincardine (hereinafter called the "Municipality") WHEREAS the owner is the registered owner of certain lands and premises described in Appendix "A" hereto, hereinafter called the ''Property''; AND WHEREAS the Municipality has established a committee known as the Kincardine Trails Association (KT A) to operate a recreational hiking trail system in the · Municipality of Kincardine, AND WHEREAS the Municipality wishes to establish a portion of the Kincardine Trail over the property, such portion hereafter called the "Trail"; · ~. NOW THEREFORE WITNESSETH in consideration of the mutual covenants herein and the payment to the Owner of the sum of one dollar ($1.00), the receipt of which the Owner hereby acknowledges, the parties hereto agree as follows: 1. The Owner hereby grants to the Municipality a right in the nature of a license to maintain a portion of the Trail over the Property for the purposes and upon the terms and considerations hereinafter set forth. 2. The term of this License shall be from the date hereof to the first anniversary of the date hereof unless terminated during the first year pursuant to paragraph 13 and thereafter from year to year without notice until terminated by either party as set out in paragraph 13 hereof. 3. The precise location and route of the Trail shall be mutually agreed upon by the Municipality or its authorized representative and the Owner, and flagged in the field to the satisfaction of both the Municipality and the Owner, prior to development of the Trail. The location and route of the trail, including any developments or improvements thereto within a corridor 7.5 meters either side of the trail, existing as of this date, may be varied from time to time, by mutual written agreement by the parties hereto without affecting the validity of the terms hereof. Any changes to the trail and any developments or improvements thereto outside this existing corridor must be agreed to by both parties prior to commencement of work. The terms of written agreement referred to above shall then apply to that newly agreed upon trail route and corridor. 4. The Municipality shall be responsible for construction and maintenance of the Trail, in a condition that is clean and safe for pedestrian travel by the public. The Municipality shall be responsible for all aspects of the ongoing maip.tenance. The Municipality shall be responsible for all costs of every nature and kind associated with the construction, repair, maintenance and ongoing use of the trail. The Municipality shall also undertake to remove any litter and correct to the extent possible, any minor problems such as fire scars or damage to fencing, structures or vegetation which may occur along the Trail or within the area defined as the trail corridor (.5 meters either side of the agreed-upon Trail route shown by the sketch in Appendix "B" attached hereto. ~ . . - The Municipality will ensure that trail workers using chainsaws, string trimmers and other equipment are properly trained in the safe use of the equipment The Owner reserves the right to halt any maintenance operation it considers unsafe. The removal of any trees is to be approved in advance by the Owner. 5. The parties hereto will allow use of the Trail to the general public without charge. 6. The Municipality will exercise during the currency hereof such duty of care to persons using the Trail as is imposed by the Occupiers' Liability Act, R.S.O. 1980, Chapter 322, including amendments thereto or successors thereof. 7. The Municipality shall comply with all provisions oflaw, including, without limiting the generality of the foregoing, federal and provincial legislation, municipal by-laws, and any other government or municipal regulations which relate to the establishment, maintenance and use of the Trail. 8. The Municipality will ensure that the Trail is marked in the following manner: (a) by signs indicating that the Trail is on private land through the courtesy of the owner. (b) by visible coloured markings on trees or other landmarks of a size no more than 5 centimetres by 15 centimetres and at a height of between 1 and 2 meters: (c) by additional signage and/or markings as may be reasonably requested by the owner from time to time. 9. The Municipality and the Owner shall, at the request of the Owner, together conduct a twice yearly inspection of the Trail on the property. The Municipality shall, within a period of one (I) month after each inspection or at any other time during the currency of the within license complete any management actions which may be requested in writing by the Owner provided these are consistent with normal trail standards. Should the Municipality fail to undertake the necessary management actions within the time specified, the Owner may carry out the Municipality's obligations and the Municipality shall reimburse the Owner for any reasonable expenses incurred thereby. 10. The Municipality will, during the currency hereof, indemnify and save harmless the Owner from and against all claims, demands, losses, costs, damages, actions, suits, or other proceedings by whomsoever made, sustained, brought or prosecuted in any manner based upon, occasioned by or attributable to anything done or omitted to be done by the Municipality, its officers, employees, servants or agents in connection with the property or purported fulfillment or required fulfillment of any of the provisions of this agreement; and provided that the Owner shall not, without the written consent of the Municipality or the insurer assume or admit liability with respect to any claim made against it for which it seeks indemnification pursuant to the provisions of this paragraph. 11. The Municipality shall at all times during the currency hereof maintain comprehensive general liability insurance in an amount not less than two million dollars ($2,000,000.00) per occurrence for bodily injury including personal injury and death, showing the Owner as an insured. 12. Nothing herein shall be interpreted or construed as giving rise to a claim by the Municipality that it has acquired title by possession or prescriptions to the Trail or any part of the Property either during the currency hereof or upon the termination of same. It is agreed upon between the parties hereto that this license shall not be registered on title. ~._~ -<\t.---~-'-2 13. This license agreement will run for a term of 1 year from the date of signing and will henceforth be renewed on that date for a similar term upon the mutual agreement of the parties hereto. The agreement may be terminated by agreement of the parties hereto or by the Owner, if the Municipality fails to fulfil the terms of the within license. Prior to termination the Owner, may provide 60 days written notice of the breach to the Municipality during which time the Municipality may take action to correct the breach and avoid termination of this license. In the event that there is a dispute between the parties regarding the existence of a breach or the satisfactory correction of such breach within the time stipulated, an arbitrator shall be appointed to resolve the dispute according to the provisions of the Arbitration's Act of Ontario. The decision of the arbitrator shall be binding on both parties and either party shall take no further action. Upon termination, pursuant to this paragraph or otherwise, the Municipality shall, to the extent feasible to do so, restore the Trail lands to the condition that they were in at the time of the granting of the within license. 14. The Municipality of Kincardine shall authorize the K.T.A. Chairperson and the CAD and Mayor to act as their agents and are authorized to sign these agreements. 15. These agreements shall be deemed to be admiuistrative in nature and the K.TA shall f11e a master trail report to Council on a yearly basis. (Through the year business plan and budget process). .! 16. Any notice required or permitted to be given hereunder may be effectively given if sent by prepaid registered post, addressed to: Chief Administrative Officer Municipality of Kincardine at: 1475 Concession 5, RR#5 Kincardine, Ont N2Z 2X6 ty of Kincardine r y Kraemer . f\~ 6\03- DATE ~v~ T.A. Chairperson 3ð 1'IJL4 206 > llJ~ Landowner -\.,L-... ),.c-<~.J\^ .rf} Municipality of Kincardine, CAO 1-\~ "\03 DATE . vltlll'i;;, . r ,/ .;,:." ,f ~l¡ l' / ~ /' Scbedule A Legal Description: Part Lot 7 to 8, 667 Pearce Lane former Town of Kincardine now the Municipality of Kincardine. . . . if .... , SCIIEDULE B Wa and Walk . ,. 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