REPORT #PRC-2016-43 COMMITTEE OF THE WHOLE MEETING DECEMBER 5, 2016 TRANS CANADA TRAILS (TCT) PROJECT - PHASE 2D (13TH TO 14TH LINE) AGREEMENT BETWEEN THE TOWN AND EDWARDS RECOMMENDATION That Report #PRC-2016-43 be received; And that Council approve the lease agreement included as Attachment #1 to Report #PRC 2016-43 permitting the Edwards use of the Abandoned Rail Corridor which dissects their property, located at 5176 13th Line, in exchange for diverting a section of the Trans Canada Trail to the south along a section of the Hydro One and Edwards property, prior to commencing construction of the southern alignment on the Edwards property, as a part of Trans Canada Trail Phase 2D (from 13th Line to 14th Line/20th Sideroad). And that, should the Edwards not agree to a lease agreement, Council consider a Share the Road option, to connect the Trans Canada Trail between the intersection of 13th Line and 20th Sideroad. And that the Council enact the necessary bylaw authorizing the Mayor and Clerk to sign the necessary documents, subject to final clearance by the Town Solicitor. OBJECTIVE The objective of this report is to seek Council s approval of the lease agreement permitting the Edwards use of the Abandoned Rail Corridor which dissects their property, in exchange for diverting a section of the Trans Canada Trail to the south along a section of the Hydro One and Edwards property. BACKGROUND Council approved at its meeting dated November 16, 2015, Special Committee of the Whole Meeting Report from November 9, 2015, CW-1, 2015-275, in part: AND FURTHER THAT staff be directed to pursue Option B (to align the trail south on the Edward s property) for the Trans Canada Trail Phase 2d, 13th Line to 20th Sideroad (Edwards Property);
Report #PRC-2016-43, December 5, 2016 Council further approved Capital Budget Sheet #2015-73/2014-102 (Attachment #2) to complete the construction of Phases 2B and 2D, as well as study options for linking Phase 3 between Tottenham and Beeton. Council further approved at its meeting dated July 4, 2016, in part: That Report #PRC-2015-27 be received; And further that staff negotiate an agreement between the Town and Edwards, whose property is located at 5176 13th Line, in order to permit the Edwards use of the ARC corridor which dissects their property, in exchange for diverting a section of Phase 2D to the south along a section of the Edwards property, and bring back a report with the draft agreement to a future Committee of the Whole meeting for Council s consideration, prior to commencing construction of the southern alignment on the Edwards property. COMMENTS AND CONSIDERATIONS As directed by Council, staff have met with the Edwards and representatives from WSP/ MMM Group Limited (MMM), the Town s trail consultant on April 28, 2016 and June 30, 2016, to review the proposed route for the Trans Canada Trail (TCT) through the Edwards property. MMM has proposed the trail alignment design (Attachment #3) which reduces the amount of the Edwards land required to construct the trail on the Edwards property, and the Edwards have supported the trail alignment design, in principle. An Ontario Land Surveyor has confirmed the location of the proposed trail, amenities and land ownership. The Engineering department further reviewed the detailed design and has commented that there should be a future 5-meter road widening allowance for the 13th Line. Should this request be accommodated, an additional 5-meter width along the length of the Edwards and Hydro One properties would be required. Since there is no current timeline for the road widening along the 13th Line in this area, Engineering staff agree that Council consider the current proposed alignment which minimizes the use of the Edwards property, and consider a re-alignment of the trail in the future as a part of any future road widening project. Staff have also met with Ms. Martin, the property owner in the south-east corner adjacent to the Edwards property, to discuss the proposed alternate route on the Edwards property and any impacts which this alignment would have on the Martin property. Ms. Martin is in agreement with the proposed trail alignment and design, and has requested a wood privacy fence and additional trees be installed along the west and north sections of her property to maintain her privacy (Attachment #3). The Town s Solicitor drafted the Lease Agreement document (Attachment #1) which summarizes the discussion between the Edwards and staff to date. The Town s Solicitor Page 2 of 16
Report #PRC-2016-43, December 5, 2016 and senior staff recommend that the Town enter into a reciprocal lease agreement, whereby the Town will lease the lands on which the trail is to be constructed from the Edwards (as well as the lands leased by the Edwards from Hydro One), and the Edwards in turn will lease the section of the Town s Abandoned Rail Corridor (ARC) land which crosses the Edwards property. This recommendation is based on the Town maintaining ownership of the rail alignment for future requirements. The Town s Engineering Department has confirmed that there are no short term plans to utilize this section of the ARC, but this alignment may be required in the future, as the Town develops. Staff provided the Edwards with a copy of the draft Lease Agreement document via email on November 8, 2016, and followed up on November 17th, requesting that the Edwards review and provide comment on the draft Lease Agreement (Attachment #1). A response was received by letter, dated November 23, 2016 (Attachment #4), with a request that a deeded conveyance of lands be discussed in council as our preferred option rather than a lease. Staff have consulted with the Town's Solicitor and have established that, should Council consider a Deeded Conveyance of Lands, a survey reference plan will be required with costs in the order of $4,000.00 to $5,000.00. The conveyancing would then be completed by the solicitors for the Town and the Edwards. As there is an exchange of land that has value, there would be some land transfer tax payable. There are two options available for Council s consideration, based on the Special Committee of the Whole Meeting Report recommendation from November 9, 2015, CW- 1, 2015-275 - Option B (to align the trail south on the Edward s property) for the Trans Canada Trail Phase 2d, 13th Line to 20th Sideroad (Edwards Property): OPTION A: OPTION B: A reciprocal lease agreement between the Town and the Edwards substantially in the form of Attachment #1 to Report #PRC-2016-43.. A reciprocal Deeded Conveyance of Lands between the Town and the Edwards as outlined above. Should the Edwards not agree to the preferred option for a reciprocal lease agreement between the Town and the Edwards, Council may also consider a third option: OPTION C: A break in the TCT Phase 2D along the ARC between the 13th Line and 20th Sideroad, and install Share the Road signage along 13th Line and 20th Sideroad, to direct pedestrians and cyclists to the intersection where the trail along the ARC resumes Page 3 of 16
Report #PRC-2016-43, December 5, 2016 The tender document for Phase 2D, from13th Line and 20th Sideroad, which includes the diversion of the Trans Canada Trail onto the Edwards' property, was issued and closed on Wednesday November 9th, 2016. The bid documents are being reviewed, and a report to award the Phase 2D project will be presented at the January 2017 Council meeting for consideration, subject to Council s direction related to the Edwards agreement. The tender document includes the option of revising the scope of the project along the TCT, Phase 2D. Staff is also finalizing an agreement with Hydro One for the section of the TCT which will cross its property, along the southern alignment, between the eastern portion of the ARC and the Edwards property. It is anticipated that, subject to Council approval and weather conditions, construction (shrub and tree trimming, ditching, etc.) within the ARC of the Phase 2D section may start in the winter of 2017. The alignment along the Edwards property will commence in the spring of 2017 at the earliest, subject to a finalized agreement. FINANCIAL CONSIDERATIONS Costs associated with the construction of TCT Phase 2D will be included in the report to award the Phase 2D project at the January 2017 Council meeting, subject to Council s direction related to the trail alignment. Respectfully submitted: Patrick D Almada Director of Parks, Recreation and Culture Attachments: Attachment #1 - Lease Agreement Edwards Attachment #2 - Capital Budget Sheet TCT Attachment #3 - Hydro One, Edwards, Martin Design Drawing L-7 Attachment #4 - Edwards Response - TCT Lease - Conveyance 241116 Attachment #5 - Trans Canada Trail Map March 2016 Page 4 of 16
Report #PRC-2016-43, December 5, 2016 Approved By: Department: Status: Mark Sirr, CPA, CMA Finance Approved - 01 Dec 2016 Brendan Holly CAO Approved - 01 Dec 2016 Page 5 of 16
ATTACHMENT #1 AGREEMENT TO LEASE Made this 1 st day of November, 2016, B E T W E E N: THE CORPORATION OF THE TOWN OF NEW TECUMSETH - and - Hereinafter referred to as the Town OF THE FIRST PART TODD ANDREW RODNEY EDWARDS AND KELLI ANN CARDER Hereinafter referred to as the Owner OF THE SECOND PART WHEREAS the Town is the owner of the Abandoned Rail Corridor of the former Canadian National Railway Right-of-way (the ARC), legally described as Part of Lots 16 to 20 Concession 13, New Tecumseth, being portions 6 to 14 as in RO1339447, now designated as Parts 2, 3 and 4 on Reference Plan 51R-27455 and Part 1 on Reference Plan 51R-27456, PIN 58143-0038 (LT) in the Town of New Tecumseth; AND WHEREAS the ARC traverses the lands owned by the Owner that are legally described as Part of Lot 18, Concession 13, New Tecumseth, designated as Part 1 on Reference Plan 51R18547, PIN 58143-0018 (LT), and Part of Lot 18 Concession 13, New Tecumseth, designated as Part 2 on Reference Plan 51R18547, PIN 58143-0019 (LT) in the Town of New Tecumseth, (the Owner s Lands); AND WHEREAS the Owner s lands are actively farmed and the Owner is desirous of leasing a portion of the ARC that traverses the Owner s Lands so that the Owner will have access to that portion of the ARC to facilitate its farm practices and prevent the public from walking across the Owner s Lands; AND WHEREAS the portion of the ARC that traverses the Owner s Lands is more particularly identified on Schedule A attached hereto and is hereinafter referred to as the Leased ARC ; AND WHEREAS the Town has been developing the ARC for municipal purposes including a passive recreational use in the nature of a walking trail (the Trail), which Trail will form part of the Trans Canada Trail System; 1 Page 6 of 16
AND WHEREAS the Town is willing to lease the Leased ARC to the Owner and alter the trail route along the boundary of the Owner s Lands, hereinafter referred to as the Boundary Trail ; AND WHEREAS the Boundary Trail will be located into the approximate area of the Owner s Lands as shown on the sketch attached hereto as Schedule B ; AND WHEREAS the parties have agreed to enter into reciprocal lease obligations by way of this Agreement to effect their intentions with respect to the use of the Leased ARC and the Boundary Trail; NOW THEREFORE in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, this agreement witnesses as follows: Recitals 1. The parties hereto acknowledge the foregoing recitals and incorporate same as terms of this agreement. Lease to Town 2. The Owner hereby grants to the Town a lease of the Boundary Trail on the following terms and conditions: (i) The Town will be entitled to construct an extension of its Trail system over the Boundary Trail and to utilize all such machinery, equipment and construction materials as are required in order to construct and maintain the Boundary Trail; (ii) The Town will install a minimum four (4) foot high fence barrier along the Boundary Trail where it abuts the Owner s Lands; (iii) The Town will restrict public access to the Boundary Trail until such time as the Trail and the fencing have been constructed; (iv) The Town will not construct any buildings on the Boundary Trail other than infrastructure associated with the use of the Boundary Trail lands as part of the Trail system; and (v) Subject to the foregoing, the Town will be entitled to quiet enjoyment. Lease to Owner 3. The Town hereby grants to the Owner a lease of the Leased ARC on the following terms and conditions: (i) The lease will be for the surface rights only of the Leased ARC; (ii) The Owner will not construct any buildings or structures on the Leased ARC; (iii) The Town retains the right to access the Leased ARC from time to time to inspect the state of the Leased ARC; 2 Page 7 of 16
(iv) (v) (vi) The Town retains the right to install sub-surface municipal services and any above-surface appurtenances thereto in the nature of manholes, gauges or markers normally associated with such sub-surface serves; Access for Town purposes will be limited to Town Staff only during the currency of the Lease Agreement; and Subject to the restrictions set out above, the Owner will be entitled to utilize the Leased ARC as part of its farming operations and have peaceable enjoyment. Costs 4. The parties will complete such surveys as are necessary in order to properly identify the Leased ARC and the Boundary Trail. The Town and the Owner will pay equally for the survey including its registration. 5. The Town and the Owner will pay equally for the legal costs that arise with respect to the drafting, execution and administration of the reciprocal leases for the ARC and the Trail. Notice of the Lease will be registered against the title to the Owner s Lands. Construction and Maintenance 6. Upon entering into the Lease Agreement, the Owner will be solely responsible for the maintenance and upkeep of the surface of the Leased ARC in either its natural state or in a state commensurate with its normal farm practices but excluding the construction of any buildings or structures. In the event the Town exercises its right to install municipal services in the Leased ARC, the Town will be responsible for returning the surface of the Leased ARC to the state prior to construction. The Town will be solely responsible for all construction and maintenance in relation to any municipal infrastructure that is installed within the Leased ARC. 7. Upon entering into the Lease Agreement, the Town will be solely responsible for the construction and maintenance of the Boundary Trail and maintain the said Boundary Trail to a reasonable standard suitable for public use. Insurance and Indemnity 8. In consideration of being allowed access as aforesaid, the Town hereby agrees to: a. indemnify and save harmless the Owner from any and all claims, damages and causes of action howsoever arising from the Town s use of the Trail; and b. insure in respect of liability, for the access rights to the Trail, against all property damage and personal injury or claims for such damage or injury with an insurance company satisfactory to the Town acting reasonably. Such policy or policies shall be issued in joint names of the Town and the Owner (or the Owner as an additional 3 Page 8 of 16
insured) in form and content satisfactory to Town. The policy shall remain in the custody of the Town during the life of this Agreement. The minimum limits of such policy shall be Five Million Dollars ($5,000,000.00) all inclusive of any one accident or occurrence but the Town shall have the right to set higher amounts. The premiums of this policy shall be paid initially for a period of One (1) year. The Town will be responsible for paying the cost of the premiums and renewal of the insurance policy. 9. In consideration of being allowed access as aforesaid, the Owner hereby agrees to: a. indemnify and save harmless the Town from any and all claims, damages and causes of action howsoever arising from the Owner s use of the ARC; and b. insure in respect of liability, for the access rights to the ARC, against all property damage and personal injury or claims for such damage or injury with an insurance company satisfactory to the Town acting reasonably. Such policy or policies shall be issued in joint names of the Owner and the Town (or the Town as an additional insured) and the form and content shall be subject to the approval of the Town. The policy shall remain in the custody of the Town during the life of this Agreement. The minimum limits of such policy shall be Five Million Dollars ($5,000,000.00) all inclusive of any one accident or occurrence but the Municipality shall have the right to set higher amounts. The premiums of this policy shall be paid initially for a period of One (1) year. The Owner will be responsible for paying the cost of the premiums and renewal of the insurance policy. Term and Termination 10. The Term of this Lease Agreement will be for a period of twenty (20) years commencing on the 1 st day of????????, 2017 to and including the???? day of?????????, 2036. Thereafter, the Lease Agreement will automatically renew for one (1) year periods unless notice of termination is given by one party to the other. Any notice of termination given after the expiry of the 20-year term will be for a minimum notice period of one (1) year. Upon expiration of the Lease Agreement, the lands subject to this Agreement will revert to the control of the property owner. Agreement Binding 11. This Agreement shall be governed by the laws of the Province of Ontario. 12. This Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 4 Page 9 of 16
IN WITNESS WHEREOF authorized representatives of the Town and the Owner have executed this Agreement. OWNER Todd Andrew Rodney Edwards Kelli Ann Carder DATE DATE THE CORPORATION OF THE TOWN OF NEW TECUMSETH MAYOR: Rick Milne CLERK: Cindy Anne Maher DATE DATE 5 Page 10 of 16
SCHEDULE A SURVEY SKETCH OF LEASED ARC LANDS 6 Page 11 of 16
SCHEDULE B SURVEY SKETCH OF BOUNDARY TRAIL LANDS 7 Page 12 of 16
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Page 14 of 16 ATTACHMENT #3
ATTACHMENT #4 Aspendale Farms 5176 13 th Line, Cookstown, ON L0L 1L0 (416) 570-7777 tedwards@hmconline.ca Mayor and Council Town of New Tecumseth November 23, 2016 We have reviewed the draft lease provided by the town s solicitor with respect to the TCT realignment around our property. We have also reviewed it briefly with our lawyer. We would like to once again request that a deeded conveyance of lands be discussed in council as our preferred option rather than a lease. It is our belief that a more permanent arrangement like this would be beneficial to both ourselves and the town. A conveyance would be permanent and never need be renegotiated. For the Town, it would ensure that the large investment that is being put into the trail is not lost in 20 years time or whatever term is decided upon. It would enable the Town to manage the lands as needed without need of our permissions. It would also simplify insurance issues since it would be town owned land. From our perspective, it would simplify the process if we were ever to sell the property as we would not have to deal with trying to transfer a lease to a new owner. It would make the farm one continuous parcel rather than the north half being landlocked. It would also remove the need for future negotiations or uncertainty at the end of the lease term. We don t want to have to go through all that we have in the last few years again in 20 years time if a new council decides it wants to go through the middle of the farm again. The only argument we have heard with regards to reluctance of Parks and Rec to discuss a deeded land swap is the issue of possible future underground utilities being put down the ARC. Our response to this has always been that we would have no issue with that and would be happy to grant an easement for that in the deed, similar to what is outlined in the proposed lease. It is our understanding that the process of conveying the lands could be done by a simple resolution of council since there is no zoning changes being made, this would need to be confirmed with town staff. I m not sure if this has been explored already or not, Mr. D Almada indicated in his email of Sept 22, 2016 that our request for a deeded land swap would be brought to council along with the lease proposal. We are unsure if Parks and Rec has done any research to this end as to what it would involve since we only received a lease proposal and nothing with regards to the conveyance to date. After consulting with our lawyer, he suggested and we are in agreement that we would like to explore the option of a conveyance prior to negotiating or agreeing to a lease arrangement. Sincerely, Todd & Kelli Edwards Page 15 of 16
Train St. Schedule A Trans Canada Trails Project -Trails Map, New Tecumseth County Rd. 50 Highway 89 30 Srd. Adjala Young St. Paris St. Falkner Rd. Ellis St. John W Taylor Ave. Victoria St. E. Industrial Pkwy. ial Pkwy. r Indust C W Leach Rd. Bella Vista Tr. Si d eroad 10 13th Line Highway 89!( 14th Line 9th Line Phase 1C Innisfil/New Tecumseth Boundary to 14th Line/20th Sideroad intersection Completed 15th Line!( $K µ King St. S. Line 13 Line 13 25 Srd. Adjala Concession Rd. 7 County R County Rd. 14 d. 1 Keenansville Rd. Adjala-Tecumseth Townline 5th Line 8th Line Tottenham Rd. Phase 2B 10th Line to Sideroad 10 Beeton Creek Bridge North of 9th Line 9th Line Phase 3B 8th Line to 9th Line Nolan Rd. Dayfoot St. Sideroad 10!(!(!( 7th Line Phase 3A 5th Line to 8th Line 6th Line 5th Line Sideroad 15 8th Line Sideroad 18 12th Line 11th Line 10th Line Line 7 County Rd. 27 Line 11 County Rd. 88 Line 5 Line 12 Phase 2D 13th Line to 14th line/20th Sideroad Phase 2C 10th Sideroad to 13th Line Completed Sideroad 18 Phase 2A - T15-09 9th Line to 10th Line Completed Sideroad 20 Sideroad 20 9th Line Line 6 Line 10 Line 10 Line 9 Line 8 Line 6 Concession Rd. 8 Adjala-Tecumseth Townline 4th Line!(!( $K Tottenham Rd.!( The Blvd. Sydie Ln. Phase 1B 4th Line to 5th Line 2nd Line 3rd Line 4th Line Phase 1A Hwy 9 to 4th Line/Mill Street Completed Sideroad 17 Sideroad 20 Highway 9 Line 4 Line 2!( Access Points $K Line 3 Line 2 Line 4 Start of Trail in New Tecumseth Town Boundary Canal Rd. 0 1 2 4 KM 1:95,000 Page 16 of 16