HomeMy WebLinkAbout16 131 Trail Licence Agreement (Jacina/Gates) By-law THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
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BY -LAW
NO. 2016 -131
BEING A BY -LAW TO AUTHORIZE THE SIGNING OF A LICENCE
AGREEMENT WITH AMY JACINA AND SHAWN GATES
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 as 778 Campbell Ave. (Part 5 and Part 9 Plan -3R-
8948) 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 Amy Jacina and Shawn Gates 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 Amy Jacina and Shawn Gates for the use of lands
described as 778 Campbell Ave. (Part 5 and Part 9 Plan -3R -8948) 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 Amy Jacina and Shawn Gates,
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.
4. That this by -law may be cited as the "Trail Licence Agreement
(Jacina /Gates) By -law ".
READ a FIRST and SECOND TIME this 16th day of November, 2016.
READ a THIRD TIME and FINALLY PASSED this 16th day of November, 2016.
. ,
Mayor
Cler
This is Schedule "..6.2 " to By-Law
Noo1 - 131 passed the i 1^ day
of 0-A lerA " 201 b
THIS LICENCE AGREEMENT
Made as of 3rd day of October, 2016
BETWEEN: Amy Jacina and Shawn Gates
(Herein called the "Owner ")
-AND-
The Corporation of 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 ";
778 Campbell Ave (Part 5 and Part 9 PLAN -3R -8948)
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 licence 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, e , p rior 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 of 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 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 licence 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 Tess 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 licence shall not be
registered on title.
12. The licence 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
licence. 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 licence. 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 licence.
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:
Yp P g P .
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 or the Municipality may in its sole
and absolute discretion terminate this agreement in its entirety at any time upon 60
days written notice to the other party. The Municipality agrees to remove any
signage, fixtures, structures and appurtenances relating to the trail from the
property upon termination of the agreement.
Municipality of Kincardine, Mayor
1 dire c
f
Owner Municipality of Kincardine, CAO
Owner
Amy Jacina
Shawn Gates
738 Baird St
N2Z 1M3
(DcT2O/ Ue1' be r 1 (0(1 k
Date Date
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