RE: Easement Agreement for Summerfield Phase 1 Parkette connection to Elora Cataract Trailway

Transcription

1 Report to Council To: Mayor Linton and Members of Council Prepared By: Pat Newson, Managing Director of Community Services Report: CS Date: 23 Jul 2018 RE: Easement Agreement for Summerfield Phase 1 Parkette connection to Elora Cataract Trailway Recommendation: THAT the Council of the Township of Centre Wellington authorize the Mayor and Clerk to execute an Easement Agreement with the Grand River Conservation Authority with respect to the easement over the Grand River Conservation Authority Elora Cataract Trailway as part of the Parkette development for Summerfield Phase 1 Development. Summary: The Summerfield Phase 1 Development includes a Parkette with a link to the Grand River Conservation Authority Elora Cataract Trailway. In order for the parkette to link to the trail, improvements including a culvert were required on the Grand River Conservation Authority lands. Attached to this report is a drawing of the prescribed improvements. The Developer will provide the improvements as part of their work and expense, however the long term easement agreement extending from the park land property line, to over the trail, is between the Township of Centre Wellington and the Grand River Conservation Authority. See attached map for location. The Township will take responsibility for the maintenance of the improvements as well as for any damage to the trail surface as a result of any washout event. Report: As part of the Summerfield Phase 1 Development, the community is able to link to the Grand River Conservation Authority Elora Cataract Trailway at a park location adjacent to the Trailway. It is not common practice for the Grand River Conservation Authority to permit links along their Trailway. It is the preference of the Grand River Conservation Authority (GRCA) to have users enter the Trailway at their identified access points. The GRCA Board of Directors has granted permission for this link, with the condition that an easement agreement between the Township and the GRCA be in place to protect the GRCA from any damage to the trail from any water run off, and that the Township take on the long term maintenance of the improvements on the GRCA lands. Attached as part of this report is the Easement Agreement. Staff and Centre Wellington

2 Legal have reviewed and terms of the easement agreement are acceptable. The GRCA have reviewed and agree to the terms of the easement agreement. The document is still in draft until the legal reference plan is completed and the municipal lot designation is identified and inserted into the document. At that time a copy of the survey will be attached as part of the Easement Agreement, which will identify the lands included as part of the easement. Staff are requesting that Council approve the Easement Agreement and approve an authorizing by-law so that the easement can be adopted. Sorbara (the Developer) is anxious to complete the improvements for the parkette and the link to the trailway. This easement agreement is required before they can have authority from the GRCA to make the improvements. Mathieu Alain who is a licensed Landscape Architect has reviewed the Parkette design, the design of the land improvements on the GRCA property, and the Easement Agreement. Staff are confident that the slop of the parkette lands and the culvert designed as part of the improvements, will protect the trailway from any type of washout event. The easement is low risk for the Township, and the benefits of connections to support off-road active transportation and connectivity throughout the Township is a significant benefit to residents of Centre Wellington. Corporate Strategic Plan: Healthy Growth - The Township will plan now for its inevitable growth, so that we retain a vibrant and accessible community and our high quality of life in the future. Financial Implications: None The expenses related to linking the parkette to the GRCA trail are paid for by Sorbara, the Developer on the Summerfield Phase 1 Development. Consultation: This report was written in consultation with Mathieu Alain, Urban Forestry Project Manager for the Township of Centre Wellington. Attachments: SummerfieldsPh1Parkette_map (002) SummerfieldsPh1Easement_plan Elora Cataract Trail Access July 2018 Approved By: Andy Goldie, Chief Administrative Officer

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5 EASEMENT AGREEMENT THIS AGREEMENT dated as of the day of, B E T W E E N: GRAND RIVER CONSERVATION AUTHORITY, An Authority established under the provisions of The Conservation Authorities Act, (hereinafter referred to, collectively, as the Authority ). - and THE CORPORATION OF THE TOWNSHIP OF CENTRE WELLINGTON (hereinafter referred to as the Township ). OF THE FIRST PART OF THE SECOND PART WHEREAS the Authority is the owner of certain lands in the Township of Centre Wellington, legally described as: PIN # , being Part of Lot 8 Concession 1, Former Township of West Garafraxa and Part of Lot 9 Concession 1 Former Township of West Garafraxa as in RO (Firstly to Thirdly); Township of Centre Wellington, County of Wellington; (collectively, the Authority Lands ); AND WHEREAS the Township wishes to construct municipal infrastructure, recreational infrastructure and public recreation trail access as listed in Schedule A (the Municipal Works, which term shall include any and all future additions, replacements or improvements thereto) over the Authority Lands; AND WHEREAS the Authority has agreed to grant to the Township a free, uninterrupted and undisturbed easement in gross in, on, over and under the lands legally described as: Part of PIN # , being Part of Lot 8, Concession 1, Former Township of West Garafraxa; Township of Centre Wellington, Wellington County, designated as Part(x) XXXX on XXR-XXXX; (collectively, the Easement Lands ), to construct, lay down, keep, inspect, maintain, alter, repair, remove and replace the Municipal Works which the Township may from time to time deem necessary, and for such purposes to enter upon the Easement Lands; AND WHEREAS the Township and the Authority wish to benefit and burden the Authority Lands with the rights and obligations as set out in this Agreement; AND WHEREAS the Township and the Authority have agreed that it is to their mutual benefit to set out guidelines relating to the maintenance of the Authority Lands and Easement Lands for continued public use; NOW THEREFORE, in consideration of the mutual covenants herein contained and the sum of Two Dollars ($2.00) paid by each party hereto to the other party hereto, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each of the parties hereto, the parties hereto acknowledge, covenant and agree as follows: 1. The parties hereto acknowledge and confirm the accuracy and truth of the foregoing recitals. 2. The Authority does hereby grant and convey unto the Township, and the Township agrees to receive, an easement in gross in, on, over and under the Easement Lands for the purposes set out in the foregoing recitals, subject to the provisions of this Agreement, and for every such purpose and

6 2 for all purposes necessary or incidental to the exercise of the rights hereby created, the Township and the Township s servants, agents, consultants, contractors and subcontractors and their supplies or equipment shall have access to the Easement Lands at all times. 3. The easement granted hereby shall be non-exclusive and in common with the rights of the Authority, on behalf of itself and the public, to the Easement Lands. Neither party shall unreasonably interfere with the other party s rights to the Easement Lands. Subject to the rights and obligations in this Agreement, the Authority shall have the charge, administration and management of the Authority Lands, including the Easement Lands, as well as the right to fully use and enjoy the same on behalf of itself and the public, for its own and any purpose whatsoever, consistent with its rights as the sole owner of them, so long as such use does not unreasonably interfere with the easement rights of the Township granted hereunder. 4. Each party shall have the right, from time to time, to enter onto the Easement Lands to perform such work as may be necessary, and in the event of such necessary access and work each party shall give the other as much notice of any maintenance, repair or other work as may be reasonably possible in the circumstances. 5. It is understood that any party undertaking work on the Easement Lands will obtain the appropriate consents and permits. 6. Each party agrees to facilitate and support any application or applications which may be made from time to time to the Province of Ontario or to the Government of Canada for grants or other financial assistance for the maintenance and repair of any Municipal Works on the lands that are in keeping with the terms of this Agreement provided however that such application is made without cost to the supporting party, the application does not affect or lessen the rights of the supporting party, that no liability or additional obligations by reason of the grant or approval of said application are incurred by the supporting party and provided that the ongoing cost of the maintenance and repair of such works shall be borne by the applicant alone unless otherwise agreed to by the supporting party. 7. Termination This Agreement, notwithstanding any right either Party may have at law to terminate this Agreement, may only be terminated as follows: (a) (b) (c) (d) By either party immediately in the event of bankruptcy, insolvency, dissolution, winding up or termination of existence of the other; By either party immediately in the event of the amalgamation, merger or association of the other and the amalgamated, merged or associated entity is not acceptable to the party exercising this right; By the Township immediately, in the event of the sale, transfer or disposition of the Lands by the Authority to a party which is not acceptable to the Township, in its sole discretion, which discretion may be arbitrarily exercised; and By either party for failure of either party to perform any covenant or condition required to be performed or observed hereunder. Upon the termination of this Agreement, the Lands shall be surrendered to the Authority and the Township will consent to the termination and release from title to the Authority Lands of the easement as set out herein. If this agreement is terminated, the Township shall have first right to the chattels or fixtures (Municipal Works) located on the Lands, and shall provide the Authority with written notice of their interest in such Municipal Works within ninety (90) days of notice of termination. Any Municipal Works located on the Lands to which the Township has not expressed an interest after ninety (90) days may be acquired by the Authority at their depreciated cost if the Authority so desires. If the Authority does not wish to acquire any such chattels or fixtures, the Municipal Works shall be removed by the Township at the Township s own expense, within six (6) months of the termination of the agreement. 8. It is mutually agreed between the Parties that if during the term of this Agreement, any part of the Authority or Easement Lands are wholly or partially destroyed or demolished by the elements or other casualty, the Township shall either re-build, repair or close the Easement Lands to use by members of the public, as in its sole discretion considers appropriate, provided that it shall meet the

7 3 regulatory requests of the Authority and any other applicable by-law, statute, rule or regulation at such time and the Authority shall either re-build, repair or close the Authority Lands to use by members of the public, as in its sole discretion considers appropriate, provided that it shall meet the regulatory requests any other applicable by-law, statute, rule or regulation at such time; 9. The Township hereby covenants, acknowledges and agrees: (a) (b) (c) the Township will pay or reimburse the Authority for all costs and expenses incurred or to be incurred by the Authority in the preparation, negotiation, execution and registration of this Agreement and of the registration of the easement on title, including without limitation all reasonable surveying expenses, legal expenses, payable immediately upon execution and delivery of this Agreement, and again on the execution and delivery or registration of any and all surveys, plans and the formal transfer of the easement; That the Authority is not making any representation or warranty, express or implied, whatsoever respecting the state of repair or condition of the Easement Lands, the intended use of the Easement Lands by the Township, or the fitness, suitability or quality of the Easement Lands for the Township s intended purposes or any other purpose, and that the Township shall use the Easement Lands solely at its own risk and expense; Subject to the rights and obligations of the Authority as contained herein, during the term of this Agreement, the Township shall assume full responsibility for the Easement Lands and the Municipal Works thereon and assume full responsibility for maintenance, cleanliness and general appearance of the Easement Lands and Municipal Works, including, but not limited to: i. operation, inspection, maintenance, alteration, repair, removal and replacement of the Municipal Works; ii. iii. iv. maintenance and repair of damage caused by runoff and erosion; removal of garbage; installation and maintenance of caution signage at the entry to the rail trail; v. removal of any trees located on the Lands which are deemed to be of a hazardous nature, as normally would be assessed and disposed of through standard maintenance practices, and to refrain from cutting down or removing any other trees, without the prior consent of the Authority first being obtained; and vi. maintenance of existing fences and other devices to identify boundaries. (d) (e) (f) (g) (h) (i) (j) neither the Township nor the Authority shall be obligated to undertake winter maintenance or snow removal on the Lands; to notify the Authority of damage to any official boundary markings observed while undertaking maintenance on the Lands; to notify the Authority of any encroachments observed while undertaking maintenance on the Lands and support the management of encroachments; to refrain from constructing any new Municipal Works on the Lands without first obtaining the prior written consent of the Authority and to provide written notification of any major alteration or reconstruction to be undertaken on existing Municipal Works; to design and perform the work required to construct, install, operate, inspect, maintain, alter, repair, remove and replace the Municipal Works at the Township s risk and expense, in accordance with generally accepted good engineering practices and standards, and in compliance with all applicable laws and regulations, ensuring that the Township s servants, agents, consultants, contractors and subcontractors are competent, properly trained, licensed and insured to carry out the work to be performed; the Township and the Township s servants, agents, consultants, contractors and subcontractors shall design and perform the work required to construct, install, operate, inspect, maintain, alter, repair, remove and replace the Municipal Works in a manner that will minimize damage to trees upon the Authority Lands and the Easement Lands; to obtain the appropriate permits prior to the undertaking of any work on the Lands;

8 4 (k) (l) (m) (n) (o) (p) (q) (r) (s) (t) (u) (v) (w) (x) to promptly pay for all materials supplied and work done in respect of the Easement Lands so as to ensure that no lien or claim of lien is registered against any portion of the Authority Lands or against the Authority s interest therein. If a lien or claim of lien is registered or filed, the Township shall discharge it at its expense within twenty (20) days after notice from the Authority, failing which the Authority may, in its option, discharge the lien or claim of lien by paying the amount claimed to be due into court and the amount so paid and all expenses of the Authority, including without limitation legal fees, shall be paid by the Township to the Authority; that, upon completion of any construction, installation, operation, inspection, maintenance, alteration, repair, removal, replacement or other work on the Easement Lands, the Township shall restore the Easement Lands and any affected Authority Lands as near as reasonably possible to their condition existing prior to the commencement of such work; not to permit any use, other than those uses which are in keeping with the outdoor recreational nature of the Authority and Easement Lands, without first obtaining the consent of the Authority; to enforce any use that is prohibited and not in keeping with the outdoor recreational nature of the Authority and Easement Lands; to consult with the Authority on any matters that may involve issues of natural resource or environmental management; to prohibit motorized vehicles from using the property, excepting maintenance vehicles owned by the Authority or the Township or its agents or on driveway and designated parking areas; not to use or consent to any use of the Authority or Easement Lands which is or shall be contrary to any valid by-law, statute, rule or regulation of the Township, County or other authority and to indemnify and save harmless the Authority for any costs, charges or damages to which the Authority may be put or suffer by reason of breach of any by-law, statute, rule or regulation that occurs on the Lands; to pay all taxes, assessments, charges and rates, municipal, provincial or otherwise assessed against the Easement Lands and the operation and facilities located thereon; that the Authority, or any authorized representatives of the Authority, shall have the unrestricted right at all times to enter and view the state or repair of the premises; that, upon identification of repairs or replacements required on the Easement Lands, the Authority shall notify the Township of said required repairs or replacements and, in consultation with the Township, the Authority shall determine which repairs and replacements are deemed necessary. The Authority shall then provide notification to the Township effecting which repairs or replacements shall be made, and the Township shall effect such repairs and replacements. if the Authority Lands are closed to use by members of the public, as the Authority in its sole discretion considers appropriate, the Township shall close the Easement Lands thereby restricting access to the Authority Lands; that any defacement of or damage to the Authority Lands that is caused by the Township or its servants, agents, consultants, contractors and subcontractors, or by any other persons, groups or members of the public using the Easement Lands, excepting the Authority and its servants, agents, consultants, contractors and subcontractors acting in such capacity, shall be the responsibility of the Township; in the event it is determined at any time by the Authority that the Municipal Works are interfering with the maintenance, operation or management of the Authority Lands, the Township will consent to the termination and release from title to the Authority Lands of this Agreement and the easement set out herein; and that the Township shall not have, develop or be entitled to any ownership right or interest in the Easement Lands at any time, other than the rights specifically set out herein.

9 5 13. The Authority hereby covenants, acknowledges and agrees: (a) (b) (c) (d) (e) (f) (g) to remove and keep the Easement Lands free and clear of any buildings, structures, impediments or obstructions intentionally placed or constructed by, or approved to be placed or constructed by, the Authority, except that which the Authority may deem necessary for ingress and egress by pedestrians, animals and equipment along, over and across the Easement Lands; subject to the foregoing, to use and/or authorize other persons, groups or members of the public to use the Easement Lands only in a manner and for purposes not inconsistent with the exercise of the rights created by this Agreement; that the Authority shall be responsible and liable for works on the Authority Lands, exclusive of the Easement Lands; that the Authority shall design and perform any works that will affect the Easement Lands in a manner that will minimize damage upon and disruption to the Easement Lands and the Municipal Works; that, upon completion of any construction, installation, operation, inspection, maintenance, alteration, repair, removal, replacement or other work on the Authority Lands that may affect the condition of the Easement Lands or Municipal Works, the Authority shall, at its own cost and expense, restore the Easement Lands and any affected Municipal Works as near as reasonably possible to their condition existing prior to the commencement of such work; that any defacement of or damage to the Municipal Works or the Easement Lands that is caused by the Authority or its servants, agents, consultants, contractors and subcontractors, shall be the responsibility of the Authority to repair and/or replace, at the Authority s sole cost and expense; and that, in the event it is determined at any time by the Township that the Municipal Works are no longer required, the Authority will consent to the termination, discharge and release from title to the Authority Lands of this Agreement and the easement set out herein and registered thereon on the terms of termination of this agreement have been fulfilled. 14. Costs and Funding Except as otherwise specifically provided herein, each of the Township and the Authority shall bear all of its own costs and expenses associated with its respective obligations set out herein. 15. Insurance and Indemnification Commercial and General Liability Insurance Each party shall, at its own expense, obtain and maintain Commercial General Liability Insurance for third party bodily injury and property damage, to an inclusive limit of not less than five million dollars ($5,000,000) per occurrence (no aggregates permitted). This policy is to include: a) Each party to add the other as additional insured; b) Contractual liability; c) Proof of insurance will be submitted by way of an executed Certificate of Insurance each year or upon renewal of policy. All requested lines of coverage to be shown on the Certificate; d) If the coverage outlined herein is cancelled or altered in a manner that represents a material change in that coverage, that would affect the obligations of each party specified herein, thirty (30) days prior written notice as outlined in Section 16 of the Agreement will be provided; and e) It shall be the sole responsibility of the Parties to determine what additional insurance coverage, if any, is necessary and advisable for its own protection and/or to fulfill its obligation under this Agreement. Any such additional insurance shall be maintained and provided at the sole expense of the parties.

10 6 Indemnification Each party hereto shall indemnify and hold harmless the other party hereto, its members, officers, employees, consultants, agents and servants, from and against all liabilities, claims, suits, actions, fines, damages, losses, costs, and expenses arising out of or in any way related to injury to or death of any person or damage to or loss or destruction of any property or in defending any action, application, claim or demand, resulting from, sustained as a result of, or arising out of or in connection with, and to the extent of, (a) any negligent act or omission or (b) any default, improper performance or non-performance of obligations in this Agreement, on the part of the indemnifying party, its servants, agents, consultants, contractors and subcontractors. This provision shall survive the termination or expiration of this Agreement and/or of the easement granted hereby. 16. Notices All notices or other documents required or which may be given under this Agreement shall be in writing, duly signed by the party giving such notice and delivered/sent/transmitted in person, by mail or by nationally/internationally-recognized courier, with a copy by telefax (if available), addressed as follows: Grand River Conservation Authority 400 Clyde Road, PO Box 729 Cambridge, ON N1R 5W6 Fax No.: (519) Attention: Manager of Property Township of Centre Wellington 1 MacDonald Square Elora, ON, NOB 1S0 Fax No.: (519) Attention: Managing Director of Community Services or to any solicitor or firm of solicitors for the time being acting for the Township or the Authority, as known to the others by reason of a notice given pursuant to this Section. Any notice or document so given shall be deemed to have been received on the third business day following the date of mailing. Any party may from time to time, by notice given as provided above, change its address for the purpose of this clause. 17. General No Agency (a) It is understood, recognized and agreed that no provision of this Agreement and no action by the parties will establish or be deemed to establish a partnership, joint venture, principalagent relationship or employee-employer relationship in any way or for any purpose whatsoever between the Township and the Authority, or between the Township, the Authority and a third party. No Authority to Represent (b) Nothing in this Agreement is to be construed as authorizing one party to contract for or to incur any obligation on behalf of the other or to act as agent for the other. Severability (c) If for any reason a provision of this Agreement that is not a fundamental term is found to be or becomes invalid or unenforceable, in whole or in part, it will be deemed to be severable and will be deleted from this Agreement, but all the other terms and conditions of this Agreement will continue to be valid and enforceable. Freedom of Information (d) Headings (e) This Agreement and all Schedules are subject to the Municipal Freedom of Information and Protection of Privacy Act (Ontario) ( MFIPPA ). Any information collected pursuant to this Agreement is subject to the rights and safeguards provided for in the MFIPPA. Section headings are not to be considered part of this Agreement and are included solely for the convenience of reference and are not intended to be full or accurate descriptions of the contents thereof.

11 7 Force Majeure (f) Either party shall be excused from delays in performing or from its failure to perform hereunder to the extent that such delays or failure arise from causes beyond the reasonable control of such party; provided that, in order to be excused from delay or failure to perform, such party must act diligently to remedy the cause of such delay or failure. 18. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter of this Agreement and there are no provisions, agreements, undertakings, representations or warranties relative to the subject matter hereof not expressly set forth or referred to herein or therein. No amendment or waiver of this Agreement shall be effective or binding unless executed in writing by the party to be bound thereby. No waiver of any provision of this Agreement shall constitute a waiver of any other provisions hereof nor shall a waiver of any provision of this Agreement constitute a continuing waiver unless otherwise expressly provided. This Agreement shall be interpreted and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. Any provision in this Agreement that may reasonably be interpreted as being intended by the parties to survive the termination or expiration of this Agreement shall survive any such termination or expiration. Whenever the singular number is used herein the same shall include the plural and the neuter gender shall include the feminine and masculine genders. This Agreement shall be binding upon and shall enure to the benefit of the Township and the Authority, their respective heirs, executors, administrators, successors and assigns. Time shall be of the essence of this Agreement. 19. This Agreement shall be maintained and registered against title to the Easement Lands. 20. The easement granted hereunder is an easement in gross. IN WITNESS WHEREOF the parties have hereunto affixed their corporate seals attested to by the hands of their duly authorized signing officers in that regards the day and year first above written. GRAND RIVER CONSERVATION AUTHORITY Per: Karen Armstrong, Deputy CAO, Secretary-Treasurer THE CORPORATION OF thetownship OF CENTRE WELLINGTON Per: Kelly Linton, Mayor Kerri O'Kane, Manager of Legislative Services/Municipal Clerk

12 8 Schedule A Municipal Works access roads and paths trail access/trail installed on Easement Lands storm sewer system and outlets/culverts park infrastructure (including but not limited to bollards, benches, signs, fencing, railings, etc.) Landscaping (grass, trees, bushes/shrubs, landscaping stone (i.e. armour stone)