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3376 Schedule "A" - A BY-LAW to authorize an lease agreement with the Ministry of Transportation for the establishment of a Cartpath Agreement over the Ministry of Transportation LandsTillS AGREEMENT is made this I 0 day of _ ___.._Po-~-'-)LL'z::j<.C,"<;"--'S"'-·\-_,__ ___ , 2009. BETWEEN: WHEREAS: THE CORPORATION OF THE TOWN OF TILLSONBURG ("Tillsonburg") and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, REPRESENTED BY THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO ("MTO") A. MTO is the owner of the MTO right-of-way (the "MTO ROW" as defined in paragraph 1.2); B. Tillsonburg, at no cost to MTO, will commence to use in the year 2009 and thereafter maintain, repair or reconstruct, also at no cost to MTO, the Tillsonburg cartpath (the "Cartpath" as defmed in paragraph 1.1 ); and C. It is deemed expedient to enter into this Agreement to give effect to the Tillsonburg proposal of establishing the Cartpath. NOW THEREFORE in consideration of the terms of this Agreement and the sum often dollars of lawful money of Canada paid by each of the parties of this Agreement to the other, the receipt whereof is hereby acknowledged, Tillsonburg and MTO agree as follows: 1. Definitions 1. In this Agreement: 1.1 the "Cartpath" shall mean all the pathway and incidentals, inclusive of maintenance, repair and reconstruction thereto, all howsoever styled, effected or caused to be effected at any time and from time to time on the MTO ROW by Tillsonburg in the location set out in Appendix "A". 1.2 the "MTO ROW" shall mean the highway right-of-way of Highway 3 ofMTO in the Town of Tillsonburg, County of Oxford, designated and illustrated in red as a controlled access highway, on Designation Plan P-1814-81 Plan Type "0" (Order in Council 22 8/7 6). 1.3 the "PTHIA" shall mean the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50 and any amendments thereto from time to time. 1.4 the "Termination Date" shall mean the date set forth in a notice sent pursuant to Section 8 hereof. 1.5 "utilities" shall mean, all utilities in whole or in part that exist now, and that may exist at any time and from time to time in the future inclusive of any variations and incidentals thereto that are in the MTO ROW and that are located within the area of the Cartpath. 2. Establishment of the Cartpath 2.1 Tillson burg, following the execution of this Agreement, may commence to use, at no cost to MTO, the Cartpath on the MTO ROW in accordance with this Agreement, including but not limited to Appendix "B". 2 3. Consent of Long Point Conservation Authority 3.1 Tillsonburg shall obtain the required approval/permits from Long Point Conservation Authority for any construction or reconstruction of the Cartpath within their area of jurisdiction. 4. Maintenance, repair and use of the Cartpath by Tillsonburg 4.1 On and after the start of the commencement of use of the Cartpath, Tillsonburg, under the terms of this Agreement, is hereby deemed to be under an obligation to effect, and shall effect at no cost to MTO, all required maintenance, repair and reconstruction of the Cartpath according to the standards ofTillsonburg and to the satisfaction ofMTO, subject to the terms of this Agreement, including but not limited to Appendix "B". 4.2 Tillsonburg at not cost to MTO shall keep the area of the MTO ROW occupied by the Cartpath in a neat and tidy condition according to the standards of Tillsonburg and to the satisfaction ofMTO. 4.3 The use of the Cartpath as a multi-purpose trail, including use by the public for walking, bike riding, and other recreational uses, including the use of motorized golf carts by the Tillsonburg Golf and Country Club, is hereby acknowledged by Tillsonburg and MTO. 5. Title in MTO ROW remaining with MTO 5.1 No provision of this Agreement, nor any maintenance, repair, reconstruction or use of the Cartpath is to be construed as creating in Tillsonburg any right, title or interest in the MTO ROW other than the right to maintain, repair, reconstruct and use the Cartpath in accordance with the terms of this Agreement. 6. Period of Use of the MTO ROW by Tillsonburg and costs payable to MTO for the Period of Use 6.1 The period of use (the "Period of Use") by Tillsonburg of the Cartpath within the MTO ROW (or respective portion as the case may be) is hereby deemed to be from the date of the signing of this Agreement until the Termination Date(s) under Section 8 hereof. 6.2 Except as otherwise expressly set out in this Agreement, there shall be no user fees payable by Tillsonburg to MTO for the Period of Use of the MTO ROW (or respective portions as the case may be). Tillsonburg shall pay to MTO any applicable standard PTHIA permit fees. 7. Insurance 7.1 Tillsonburg shall, during the Period of Use, have in place a fully paid-up commercial general liability policy of insurance covering property damage, bodily injury and personal injury. Such policy shall: A. name MTO as an additional insured; B. not be subject to cancellation without 60 days notice to MTO; C. have a limit of not less than five million dollars ($5,000,000.00) per occurrence; and D. contain a cross liability clause endorsement. 7.2 No permit shall be issued under paragraph 12.1 prior to the delivery to the MTO London Corridor Management Section of a certificate for the insurance policy for commercial general liability insurance provided for in paragraph 7 .l; 3 8. Termination of the Cartpath and/or Temporary Closure of the Cartpath in whole or in part of the MTO ROW 8.1 Either Tillsonburg or MTO without any reason, and at no cost to MTO, may at any time or times temporarily close the Cartpath or terminate this Agreement as defined herein by forwarding a notice by either registered mail or by facsimile to the others specifYing: A. either the portion or the whole of the Cartpath being dealt with, and B. a termination date ("Termination Date") of at least 6 months after the date of the postmark, if by mail, or transmission, if by facsimile, with respect to the area of the MTO ROW affected by the notice. C. or temporary closure date ("Temporary Closure Date") of at least 60 calendar days after the date of the postmark, if by mail, or transmission, if by facsimile, with respect to the area of the MTO ROW affected by the notice. Provided that any proposal by Tillsonburg to relocate the Cartpath to a new location within the MTO ROW will require the prior written approval ofMTO. 8.2 MTO shall not be fmancially responsible to Tillsonburg for any loss of use or business loss resulting from the termination and/or temporary closure of the Cartpath, the termination of this Agreement or any amendment to the MTO ROW. 8.3 On or before any respective Termination Date, Tillsonburg shall cause the area of the MTO ROW, specified in the paragraph 8.1 notice, to be left in a neat and tidy condition, and to restore as applicable the highway right of way. 8.4 On the Termination Date referred to in any paragraph 8.1 notice, the use by Tillsonburg of the portion of the MTO ROW specified by that letter is hereby deemed to be ended. 8.5 Notwithstanding the other provisions of this Agreement, in the event of an emergency, as determined by MTO in its sole discretion, requiring MTO to act to repair, maintain or reconstruct the MTO ROW in respect of matters of highway safety or highway traffic flow: A. MTO may give Tillsonburg oral or written notice of such emergency. Upon such notice, MTO may temporarily suspend Tillsonburg's rights under this Agreement; and B. MTO shall not be liable to Tillsonburg for any costs or damages incurred by Tillsonburg as a result of such temporary suspension. 8.6 Nothing under paragraphs 8.1 to 8.5 shall be construed as lessening the obligation of Tillsonburg to MTO under the paragraph 13 .I indemnity with respect to the period of time prior to the Termination Date. 9. Addresses 9.1 The address of Tillsonburg for the purposes of this Agreement, unless Tillsonburg otherwise advises in writing, is: The Town ofTillsonburg 10 Lis gar Ave. Tillsonburg, Ontario N4G5A5 Attention: Chief Administrative Officer Tel. (519) 842-6428 Fax: (519) 842-9431 4 9.2 The address for MTO for the purposes of this Agreement, unless MTO otherwise advises in writing, is: Ministry of Transportation 659 Exeter Road London, Ontario N6E 1L3 Attention: Head, Corridor Management Section Tel: (519)873-4203 Fax: (519)873-4228 10. Utilities 10.1 Prior to any reconstruction of the Cartpath, Tillsonburg shall notifY any existing utilities with a plant located along the Cartpath and inform such utilities of its intent to reconstruct the Cartpath. 10.2 Should the Cartpath be disturbed in any way by the installation or repair of utilities, Tillsonburg shall, at its cost, make any necessary repairs to the Cartpath, not already rectified by the applicable utility corporation. 11. Section 33(1) ofPTIITA and Municipal Undertaking by Tillsonburg 11.1 The Cartpath is hereby deemed to be, also, a municipal undertaking of Tillsonburg within the MTO ROW under the end portion of section 33(1) of the PTHIA whereby: Tillsonburg is liable for want of repair of the municipal undertaking whether the want of repair is the result of nonfeasance or misfeasance, in the same manner and to the same extent as in the case of any other like work constructed by Tillson burg. 12. Standard MTO short form permit to Tillsonburg and this Agreement is also a section 2 and 38 Permit and formal name of MTO 12.1 MTO as an item of this Agreement, on the submission of the standard encroachment permit application and fee by Tillsonburg to the MTO London Corridor Management Section, shall issue to Tillsonburg a standard MTO short form encroachment permit under section 2 and 38(2)(a) of the PTHIA. 12.2 This Agreement is hereby deemed to be also a permit to Tillsonburg from MTO under sections 2 and 38(2)(a) of the PTHIA. 12.3 Any issued paragraph 12.1 permit is subject to the terms printed on that permit and is hereby deemed also to be subject to the terms of this Agreement. 12.4 Any MTO permit issued under paragraph 12.1 to Tillsonburg shall have annotated on it: This permit is subject to the terms of the Agreement dated the __ day of __ _ ___ , 2009 between Tillsonburg and MTO. 12.5 The formal name style ofMTO is set forth in section 33(7) of the PTHIA. 12.6 The terms and conditions contained in Appendix "B" form part of this Agreement. 12.7 A copy of the Agreement, including Appendix "A" and "B" shall be attached to any issued paragraph 12.1 permit. 5 13. Tillson burg shall save harmless MTO, and compliance with all laws of Tillsonburg 13.1 Tillsonburg shall save harmless and indemnify MTO from all claims, demands, damages, proceedings, obligations, costs inclusive of solicitor and his client costs, interest, and all actions, that MTO may suffer or incur because of the effecting or not effecting of any term or matter under this Agreement by Tillson burg, save and except to the extent of any negligence of MTO. 14. Liability 14.1 MTO shall not be liable in any manner whatsoever for any loss, injury, or damage to person or property including loss oflife, by whomsoever suffered, that in any way is connected to the establishment, maintenance, repair, reconstruction, use or operation of the Cartpath unless caused by the negligence or the wilful act of an employee or agent ofMTO while acting within the scope of his or her employment or agency respectively. This provision shall survive the termination or expiry of this Agreement. 15. Compliance 15.1 Tillson burg shall comply with all applicable laws in the effecting of any provisions of this Agreement. 16. Assignment 16.1 This Agreement may not be assigned by Tillsonburg without the prior written consent ofMTO. This Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective successors, and permitted assigns. IN WITNESS OF ALL contained in this Agreement ;l THE CORPORA II "()F THE TOWN OF TILLSONBURG HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONT ARlO, REPRESENTED BY THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO Steven Mcinnis, Head, Corridor Management Section, West Region for the Ministry of Transportation for the Province of Ontario 6 Appendix "A" 7 Appendix "B" Conditions for Encroachment Permits and Utility Installations On or Under a controlled-access highway Tillsonburg and any agent for Tillsonburg shall apply for and receive any applicable PTHIA permits before commencing any work with respect to the Cartpath. Such permit shall include the terms and conditions noted below. The Steed and Evans Patrol Supervisor at (519)652-5561, the MTO Maintenance Co-ordinator at ( 519)53 7-7 587 and the Corridor Management Section of MTO's West Region Office ( 519)873-4203 are to be notified 24 hours prior to the commencement of any work within the MTO ROW. This notification should include the name and number of the person to contact in the event of an emergency after working hours, weekends or holidays. Tillsonburg shall gain access to the Cartpath area from lands adjacent to the MTO ROW, no direct access is permitted from Highway 3. Tillsonburg shall exercise extreme caution when working around MTO culverts and manholes, as not to damage or undermine the facilities. All surplus material to be disposed of outside the MTO ROW. All work being carried out should comply with drawings and specifications as set out in the Contract Documents by Gateman Milloy Project Number GMY 001. . It will be Tillsonburg's responsibility to establish the location of the utilities located within the MTO ROW. Any alterations or relocations required as a result of the construction and maintenance of the Cartpath will be at Tillsonburg's expense. Any damage to existing pipes, or other drainage facilities, caused by or on behalf of Tillsonburg during the course of the reconstruction or maintenance of the Cartpath shall be repaired to original condition or better. The areas of installation including ditches, shoulders, fences, etc. are to be restored to original condition subject to the satisfaction ofMTO's Maintenance Co-ordinator. Drainage shall be maintained at all times. Any shoulder material contaminated as a result of the construction or maintenance of the Cartpath shall be removed and replaced with Granular "A" by Tillsonburg at its expense. Tillsonburg is responsible for all measures required to ensure the safety of the travelling public and controlling traffic by utilizing adequate flagmen, signs or lighting necessary. The standards of traffic control shall comply with those indicated in the Ontario Traffic Manual Book 7, Temporary Conditions Manual. Where at all possible, vehicles and equipment shall be parked clear of the shoulders of the highway and prolonged parking on the shoulders will not be permitted. Vehicles and equipment may not be parked on the shoulders at night except in an emergency and shall be suitably illuminated. Failure to do so may result in the cancellation of the Permit or Agreement. Stockpiling of material adjacent to the travelled portion of the road will not be permitted. Notwithstanding the permission granted herein, Tillsonburg shall not cut, trim, or interfere with any trees on the highway without the approval in writing of the Minister as represented by the Head, Corridor Management Section. All mature trees to be bored from dripline to dripline, as not to destroy the root system. All excavations to be left overnight should be barricaded and the appropriate lighting installed. 8 A copy of the "as constructed" plans and profiles is to be forwarded to MTO upon completion of the work. The cost of any work performed by MTO due to carelessness or negligence on the part of Tillsonburg, shall be paid to MTO by Tillsonburg forthwith upon receipt of an invoice. MTO will perform a final inspection at the completion of any reconstruction of the Cartpath project. In the foregoing "original condition" means the condition immediately prior to any reconstruction or maintenance of the Cartpath undertaken by or on behalf ofTillsonburg.