HomeMy WebLinkAbout11 006 Trail Licence Agreement (Burnside) By-law THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
KBT,
it -ALINOF
BYLAW
NO. 2011 — 006
BEING A BY -LAW TO AUTHORIZE THE SIGNING OF A LICENCE
AGREEMENT WITH WILBERT FRANCIS BURNSIDE
WHEREAS Sections 8 (1) and 9 of the said Municipal Act, provides that the
powers of a municipality under this or any other Act shall be interpreted broadly
so as to confer broad authority on the municipality to enable the municipality to
govern its affairs as it considers appropriate and to enhance the municipality's
• ability to respond to municipal issues and a municipality has the capacity, rights,
powers and privileges of a natural person for the purpose of exercising its
authority under this or any other Act;
AND WHEREAS the Municipality has established a committee known as the
Kincardine Trails Association (KTA) 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 lands described Park Lots 9 and 10 and part of Park Lot 11, all West of
Park Street and Lots 21, 22 and 23, East side of Victoria Street, Municipality of
Kincardine [geographic Town of Kincardine], County of Bruce and more
particularly described in Appendix 'A' to the attached Schedule 'A';
AND WHEREAS The Corporation of the Municipality of Kincardine is not the
owner of said lands and deems it advisable to enter into a licence agreement with
Wilbert Francis Burnside, for the use of these lands;
• NOW THEREFORE the Council of The Corporation of the Municipality of
Kincardine ENACTS as follows:
1. That The Corporation of the Municipality of Kincardine enter into a licence
agreement with Wilbert Francis Burnside for the use of lands described as
Park Lots 9 and 10 and part of Park Lot 11, all West of Park Street and
Lots 21, 22 and 23, East side of Victoria Street, Municipality of Kincardine
[geographic Town of Kincardine], County of Bruce.
2. That the Mayor and Chief Administrative Officer be authorized and
directed to sign and execute, on behalf of The Corporation of the
Municipality of Kincardine, the licence agreement with Wilbert Francis
Burnside, attached hereto as Schedule "A" and forming part of this By -law
and to affix the corporate seal as required.
3. That this by -law shall come into full force and effect upon its final passage.
4. That this by -law may be cited as the "Trail Licence Agreement (Burnside)
• By -law ".
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Page 2
Trail Licence Agreement (Burnside) By -law
By -law No. 2011 - 006
• READ a FIRST and SECOND time this 12` day of January, 2011.
9( Salyvha.-fratiD
ayor Clerk QU
READ a THIRD TIME and FINALLY PASSED this 12 day of January, 2011.
I s
IA L.
ayor Clerk
•
•
•
THIS LICENCE AGREEMENT
Made as of 714 day of c , 2011
BETWEEN: Wilbert Francis Burnside
(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 (KTA) 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" as represented on the attached
Schedule `B ".
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 precise location and route of the Trail shall be mutually agreed upon by j
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 3 metres 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.
3. 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
maintenance. The Municipality shall be responsible for costs 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 3 metres either side of the agreed -upon Trail route
shown by the sketch in Schedule `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.
4. The parties hereto will allow use of the Trail to the general public without
charge.
5. The Municipality will exercise during the currency hereof such duty care to
persons using the Trail as is imposed by the Occupiers' Liability Act, R.S.O
1990, Chapter 0.2, including amendments thereto or successors thereof
6. The Municipality shall comply with all provisions of law, 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.
7. 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, for pedestrian use by the public. Please note the teen
"pedestrian" will be interpreted for the balance of this Agreement to
accommodate the following uses: walking, hiking, jogging, cycling, cross -
country skiing and snow shoeing.
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 metres, for pedestrian use by the public;
c. By additional signage and/or markings as may be reasonably requested by
the owner from time to time.
8. The Municipality and the Owner shall, at the request of the Owner, together
conduct a quarterly yearly inspection of the Trail on the property. The
Municipality shall, within a period of one (1) month after the inspection or at
any other time during the currency of the within license complete any trail
management actions which may be requested in writing by the Owner
provided these are consistent with the normal trail standards. Should the
Municipality fail to undertake the necessary trail 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. Please note that all trail inspection shall be documented and
submitted to the Manager of Public Works on a quarterly basis.
9. 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 trail 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 its 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.
10. 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.
11. 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.
12. This license agreement will be automatically renewed for successive annual
terms until terminated. 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 addition, either party may terminate this agreement upon 60
days written notice to the other party. 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.
13. The Municipality of Kincardine shall authorize the CAO and Mayor to sign
these agreements.
14. The K.T.A. shall file a Master Trail Report to the Manager of Public Works
who will in turn provide the Report to Council on a yearly basis. (Through
the yearly Business Plan and budget process).
15. 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
1475 Concession 5, RR #5
Kincardine, Ont N2Z 2X6
0
Muni it y of cardine
Mayor Larry Kamer d 4
•
C C
Wilbert r cis Burnside Municipality of Kincardine
John deRosenroll, CAO
7
ilk u 2o! i "lanunl1 t ►a ar)t 1
Date Date ci
Appendix `A' Page 4
Park Lots 9 and 10 and part of Park Lot 11, all West of Park Street and Lots 21,
22 and 23, East side of y iatert a Street, all in the Town of Kincardine (now
Municipality of Kincardine), County of Bruce and more particularly described as
follows: t i g
FIRSTLY:
Park Lots 9 and 10, West of Park Street, Town of Kincardine, County of Bruce.
SECONDLY:
Part of Park Lot 11, more particularly described as follows:
COMMENCING at a point in the Southerly limit of said lot distant 245 feet
measured westerly thereon from the southeast angle of said Lot;
THENCE Westerly along the Southerly limit of said Lot to the southwest angle of
said Lot;
THENCE Northerly along the Westerly limit of said Lot to the northwest angle of
said Lot;
THENCE Easterly along the Northerly limit of said Lot to the northeast angle of
said Lot;
THENCE Southerly among the Easterly limit of said Lot a distance of 116 feet to
a point therein distant 214 feet measured northerly therealong from the southeast
angle of said Lot;
THENCE Westerly parallel with the Southerly limit of said Lot a distance of 245
feet to a point;
THENCE Southerly parallel with the Easterly limit of said Lot a distance off 214
feet more or less to the Point of Commencement;
SAVE AND EXCEPT those parts of said Park Lot 11 now shown as part 1 on
reference Plan 3R -515, Parts 1 and 2 on Reference Plan 3R -1790 and Parts 1,
2, 3 and 4 on Reference Plan 3R -2080 being all of the lands remaining to the
deceased of the lands conveyed to her by instrument number 73782.
SUBJECT TO AN EASEMENT over that part of said Park Lot 11 now shown as
Part 1 on Reference Plan 3R -1357 upon the terms and conditions set out in
instrument number 141569.
THIRDLY:
Lots 21, 22 and 23. East side of Vieterie Street, Town of Kincardine, County of
Bruce EIcjtn,
SUBJECT TO AN EASEMENT over that part of Park Lots 10 and 11, West of
Park Street, and part of Lots 21, 22 and 23, East side of Vfieterta Street, all in the
Town of Kincardine, County of Bruce, now shown as Part 1 on Reference Plan
3R -4013 according to the terms and conditions set out in instrument number
230674. CElS
Page 1 of 1
Schedule B
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