HomeMy WebLinkAbout21 024 Trail Licence Agreement (584 Hunter St, Lot 3, Plan 3M200) By-law
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
BY-LAW
NO. 2021 - 024
BEING A BY-LAW TO AUTHORIZE THE SIGNING OF A LICENCE
AGREEMENT WITH ANDREW WALSH AND RHONDA WALSH
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
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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 584 Hunter St, Lot 3, Plan 3M200, Municipality of
Kincardine <H? GIK@ J<KMD>NF<KFR ?@L>KD=@? DH MC@ <MM<>C@? 9>C@?NF@ T/U.
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 Andrew Walsh and Rhonda Walsh 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 Andrew Walsh and Rhonda Walsh for the use of lands
described as 584 Hunter St, Lot 3, Plan 3M200, Municipality of Kincardine
and more particularly described in the attached 9>C@?NF@ T/U.
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 Andrew Walsh and Rhonda Walsh
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3. That this by-law shall come into full force and effect upon its final passage.
4. That this by-F<P G<R =@ >DM@? <L MC@ VTrail Licence Agreement (584 Hunter
St, Lot 3, Plan 3M200) By-law".
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READ a FIRST and SECOND TIME this 1 day of March, 2021.
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READ a THIRD TIME and FINALLY PASSED this 1 day of March, 2021.
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Mayor Clerk
This is Schedule" "to By-law
No.cozi-cb -k passed the 161- day
of MaCC-h 20 2-l
THIS LICENCE AGREEMENT
Made as of 23rd day of November 2020
BETWEEN: Andrew Walsh and Rhonda Walsh
584 Hunter Street Kincardine, Ontario N2Z OB2
(Hereinafter 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 legally described in
Schedule "A" attached hereto, hereinafter called the "Property", and municipally known as,
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Kincardine.
AND WHEREAS the Municipality has established a committee known as the Kincardine Trails
Association, hereinafter called the "KTA",to operate a recreational hiking trail system within the
Municipality of Kincardine, hereinafter called the "Kincardine Trail".
AND WHEREAS the Municipality wishes to construct and maintain a portion of the Kincardine
Trail over the Property for pedestrian use, such portion hereafter called the "Trail", as identified
on Schedule "B" attached hereto.
NOW THEREFORE WITNESSETH in consideration of the mutual covenants contained herein and
the payment by the Municipality 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 licence to construct and maintain a portion
of the Kincardine Trail over the Property for the purposes and upon the terms and considerations
hereinafter set forth.
2. The approximate location and route of the Trail shall be mutually agreed upon by the
Municipality or its authorized representative and the Owner acting reasonably. The precise
location of the Trail shall be 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 existing within a 7.5 metre corridor on both sides of the Trail as
of the date of this agreement (the "Corridor"), may be amended by mutual written agreement of
the parties hereto without affecting the validity of the terms hereof. Any changes to the Trail
and/or any developments or improvements outside the Corridor must be agreed to in writing by
both parties prior to commencement of work. The terms or written agreement(s) referred to
above shall then apply to the newly agreed to Trail and/or Corridor.
3. The Municipality shall be responsible for construction and maintenance of the Trail and
Corridor in a condition that is clean and safe for pedestrian travel by the public as determined by
the Municipality in its absolute and sole discretion. The Municipality shall be responsible for all
aspects of the ongoing maintenance, including but not limited to any costs associated with the
construction, repair, maintenance and ongoing use of the Trail as deemed necessary or advisable
by the Municipality. 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 the Corridor. The Municipality will ensure that any
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employees,contractors, agents or assigns using chainsaws, string trimmers and other equipment
are properly trained in the safe use of the equipment. The removal of any trees shall be approved
in advance by the Owner unless the Municipality deems the removal of any such tree necessary
to ensure the safety of the Municipality's employees, contractors, agents, assigns or the public.
4. The parties hereto will allow use of the Trail to the general public without charge.
5. The Municipality will exercise such duty of care to persons using the Trail as is imposed
by the Occupiers' Liability Act, R.S.O 1990, Chapter 0.2, and amendments thereto or successors
thereof, during the term of this Agreement.
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 and restricted to pedestrian use by the public. Pedestrian use shall be
defined for the purposes of this Agreement as any of 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
indicating the Trail is reserved for pedestrian use by the public; and
c) Any other signage or markings deemed necessary or advisable by the Municipality
in its sole and absolute discretion.
8. The Municipality shall conduct an inspection of the Trail on the Property on a yearly basis.
All inspections of the Trail, shall be documented in a form determined by the Municipality and
submitted to the Director of Public Works on a annual basis.,The Municipality shall complete any
repairs or maintenance required to the Trail arising out of the inspection within thirty (30) days
of the inspection.The Owner may also provide a written request to the Municipality that the Trail
be repaired or maintained. If, in the sole and absolute discretion of the Municipality, the
aforementioned repairs or maintenance is required to meet the standard consistent with other
areas of the Trail, then the Municipality shall begin the repairs or maintenance in the manner
determined by the Municipality within thirty (30) days of the inspection or written request
described above. Should the Municipality fail to commence the necessary repairs 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. The Owner and the
Municipality hereby acknowledge that the aforementioned repairs and/or maintenance are
seasonal and weather sensitive and may be delayed or suspended in adverse weather conditions
or if such repairs and /or maintenance would interrupt normal farming operations.
9. The Municipality shall 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 as determined by the court of competent jurisdiction in connection with the Trail or
3
purported 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 for the term of this Agreement. In addition hereto,
the Municipality undertakes and agrees to reimburse and pay the Owner for any crop damage,
which directly results from the construction, repair or maintenance of the Trail and, the
Municipality agrees not to disrupt normal farming operations undertaken by the Owner during
such maintenance, construction or repair of the Trail.
10. The Municipality shall not be responsible for any loss, claims, 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 Owner, or
the Owner's employees, officers, servants or agents in the course of the Owner's farming
operations or otherwise.
11. The Municipality shall at all times during the term of this Agreement 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 additional insured with respect to the operation of this Agreement.The Municipality
agrees to provide a copy of the liability insurance policy to the Owner upon execution of this
Agreement and annually thereof, if requested by the Owner.
12. Nothing herein shall be interpreted or construed as giving rise to a claim by the
Municipality that is has acquired title by possession or prescription to the Trail or any part of the
Property either during the currency of this Agreement or upon the termination of same. The
parties hereto agree that this Agreement shall not be registered on title.
13. This Agreement will be automatically renewed for successive annual terms until
terminated. This Agreement, and any renewals thereof, may be terminated in its entirety by
either party, or, notwithstanding any other provisions of this Agreement or any oral
understanding between the parties, by providing six (6) months' written notice of termination to
the other party at the addresses provided in paragraph 17 herein.
14. In the event that there is a dispute between the parties regarding the existence of a
breach or the satisfactory remediation of such breach within the time stipulated, an arbitrator
shall be appointed to resolve the dispute according to the provisions of the Arbitration Act, 1991,
S.O. 1991, c. 17, and any amendments thereto or successor legislation. The decision of the
arbitrator shall be binding on both parties and either party shall take no further action.
15. Upon termination of this Agreement, and within a reasonable timeframe, the
Municipality shall, to the extent feasible to do so as determined by the Municipality in its sole
and absolute discretion, remove any signage, and appurtenances relating to the Trail from the
Property.
16. This Agreement and the covenants, provisos, conditions and schedules in this agreement
shall be binding upon the parties and their respective heirs, executors, administrators, successors
and assigns.
17. This Agreement shall be governed by and construed and interpreted in accordance with
the laws of the Province of Ontario and the laws of Canada applicable therein.
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18. Any amendments to this Agreement shall be in writing and agreed upon by the parties.
19. Time shall be of the essence.
20. The parties agree that this Licence constitutes the entire agreement between the parties
with respect to the subject-matter hereof, and that this agreement supersedes all proposals,oral or
written,all previous negotiations and all other communications between the parties with respect to
the subject-matter hereof.
IN WITNESS WHEREOF the parties have duly signed and/or affixed their corporate seals attested by the
hands of their respective officers duly authorized in that behalf.
Andrew Walsh
1, /
„,/fri6i.
Rhonda Walsh
THE CORPORATION OF THE MUNICIPALITY
OF KINCARDINE
L-
Anne Eadie - M.yor
aron Chambers—CAO
We have authority to bind the Corporation