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Home My WebLink About12 066 Trail Licence Agreement (Ontario Peninsula Farms Ltd. c/o Walter Schmoranz) By-law THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE . 1(81 0 :- aWn wrip ,734- 40 %urcar BY-LAW NO. 2012 - 066 BEING A BY -LAW TO AUTHORIZE THE SIGNING OF A LICENCE AGREEMENT WITH ONTARIO PENINSULA FARMS LTD. CIO WALTER SCHMORANZ 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 Con A Pt. Lots 16 -20 PL 10 PT; Lt 9 Lts 13 -16 RP — 3R7390; Parts 1 & 2 Sec Plan 10 PCL; 9 -1 Sec C A PCL 16 -1 and more particularly described in 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 Ontario Peninsula Farms Ltd c/o Walter Schmoranz, 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 Ontario Peninsula Farms Ltd c/o Walter Schmoranz for the use of lands described as Con A Pt. Lots 16 -20 PL 10 PT; Lt 9 Lts 13- 16 RP — 3R7390; Parts 1 & 2 Sec Plan 10 PCL; 9 -1 Sec C A PCL 16 -1 and more particularly described in the attached Schedule 'A'; 2. That the Mayor and Chief Administrative Officer be authorized and directed to execute, on behalf of The Corporation of the Municipality of Kincardine, the licence agreement with Ontario Peninsula Farms Ltd c/o Walter Schmoranz, attached hereto as Schedule "A" and forming part of this By -law. 3. That this by -law shall come into full force and effect upon its final passage. • .../2 Page 2 Trail Licence Agreement (Ontario Peninsula Farms Ltd) By -law By -law No. 2012 - 066 • 4. That this by -law may be cited as the "Trail Licence Agreement (Ontario Peninsula Farms Ltd) By -law ". READ a FIRST and SECOND time this 6 day of June, 2012. l c , /� ' ic.� —�— c Dc.ma "l'Iwe a1.0 ai r - Ma y or Clerk READ a THIRD TIME and FINALLY PASSED this 6 day of June, 2012. • IIIIP► V ayor Clerk ` • • • • THIS LICENCE AGREEMENT Made as of (o day of Sure 2012 -02 -13 BETWEEN: Ontario Peninsula Farms Ltd c /o/ Walter Schmoranz (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 Schedule "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 presented on attached Schedule "A ". 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 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 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 or 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 7.5 metres either side of the agreed - upon Trail route shown by the sketch in Schedule 'A' 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 term '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 inspections 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. In addition hereto, the Municipality undertakes and agrees to reimburse and pay the owner for any crop damage resulting from the construction, repair or maintenance of the trail and further, the Municipality agrees not to disrupt normal farming operations during such maintenance, construction or repair of the Trail. 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. The Municipality agrees to provide a copy of the liability insurance policy to the owner upon execution of this agreement and at any time upon the owner's request. 11. Nothing herein shall be interpreted or construed as giving rise to a claim by the Municipality that is 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. The 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 C.A.O. 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 16. For the purposes of certainty, the owner and Municipality agree that, notwithstanding any term, condition or provision of this agreement, or any oral understanding between the parties, the owner may in its sole and absolute discretion terminate this agreement in its entirety at any time upon 60 days written notice to the Municipality. The Municipality agrees to remove any signage, fixtures, structures and appurtenances relating to the trail from the property upon termination of the agreement. • /1 -_._ M tiii ipality of KirOrdif - -=. _ Mayor Larry Kra*er y ,,, Walter Schmoranz Municipality of Kincardine Ontario Peninsula Farms Ltd. C.A.O. Murray Clarke Mal 7 71)17 June (c, 200 - Date Date SCHEDULE A � J � t '' r r I �. Y r J ` / I • t , i i C ti' Ak' f fl / / " 7 � a ', 9wr :r e- , �,� 2,.4 1 *, / f Legend `' �� /4 e Z � property boundary � 1 1 �� j , y , 4 4 rwr4 � - ' ` trail "'7. t ' ,' ��{i 4t � '` > l i sir T_ .. :.�'�.. e,�� +` ,. y IZ e r r /d � �, 4 r wa y ' l " 4 11 "ef i t s i y 6t . D - n'' p t. j r " f t "a k fie & ' ' 7 �T. "o°' " y � A� , ,( l�', 1 *` ' .c---.y: .. mi: «m, , ,•,.,..p ,,-., es�. a.. .. . ...7'r1 , n. ' 1, ""+.. 5 2 ., Property Legal Description: Con A Pt Lots 16 -20 PL 10 PT; LT 9 Lts 13 -16 RP — 3R7390; Parts 1 & 2 Sec Plan 10 PCL; 9 -1 Sec C A PCL 16 -1 1