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3644 Schedule "A" - To authorize an agreement between the Corporation of the Town of Tillsonburg and the Tillsonburg Golf and Country Club LimitedEASEMENT AGREEMENT DATED this 18th day of September, 2012 BETWEEN: THE TILLSONBURG GOLF AND COUNTRY CLUB LIMITED OF THE FIRST PART (hereinafter referred to as "TGCC") -AND- THE CORPORATION OF THE TOWN OF TILLSONBURG OF THE SECOND PART (hereinafter referred to as the "Town") -AND- BANK OF MONTREAL and 1199734 ONTARIO LIMITED (hereinafter collectively referred to as the "Mortgagees") WHEREAS The Parties entered into an agreement dated September 11, 2012 whereby certain lands were transferred to TGCC (the "Definitive Agreement"). Contained on the lands conveyed to TGCC and other lands owned by the TGCC is a multi-use public trail. TGCC and the Town have agreed that as part of the consideration for the conveyance of the lands conveyed to TGCC an easement would be granted by TGCC over part of the conveyed and existing lands for the purposes of the multi- use public trail. The Mortgagees have consented to the terms contained in this agreement. IN CONSIDERATION for the conveyance of certain lands as defined in the Definitive Agreement from the Town to TGCC and such other further and valuable consideration,the receipt and sufficiency of such is hereby acknowledged, TGCC irrevocably and Easement Agreement September 18, 2012 -2- unreservedly grants to the Town an easement over the Carroll Trail as defined by this easement agreement (the "Easement Agreement") as follows: 1. The Parties agree as to the definition of the following words or phrases: a. "Carroll Trail" shall mean the Shared Carroll Trail and Unshared Carroll Trail. For the purposes of this Easement Agreement the Carroll Trail includes the designated path, benches, picnic tables, exercise equipment, equipment for rest and refuse containers adjacent to the Shared Carroll Trail and Unshared Carroll Trail; b. "Golf Course" means the eighteen holes of golf located on the Golf Course Lands and the Old Golf Course Lands used by the TGCC as the Bridges Golf and Country Club but excludes the Carroll Trail. c. "Golf Course Lands" means the property legally described as Parts 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 on Plan 41R-8815; d. "Old Golf Course Lands" means the property legally described as Parts 1 and 2 on Plan 41R-7400 save and except parts 1, 2, 3 and 4 on Plan 41R-8799; e. "Shared Carroll Trail" shall mean that part of the Carroll Trail for walking, biking, and/or other recreational activity which is also traversed by golfers on the Golf Course as outlined in "Yellow" on Schedule "A" to this Easement Agreement. The Parties agree that the bridges and underpass are part of the Shared Carroll Trail; f. "Unshared Carroll Trail" shall mean that part of the Carroll Trial for walking, biking, and/or other recreational activity which is not normally used or required by the golfers on the Golf Course as outlined in "Green" on Schedule "A" to this Easement Agreement; 2. TGCC grants to the Town an easement over the Carroll Trail for the purposes and on the terms as set out in this Easement Agreement (the "Easement") 3. The purpose of the Easement is for members of the general public to use, traverse and/or occupy the Carroll Trail for recreational activities which include, but not limited to, hiking, walking, jogging, running, biking, standing, pole walking, roller blading, skateboarding and any other non-mechanized -3- use (the "Use"). The Parties agree that electric wheelchairs, golf carts (on the Shared Carroll Trail), segways, power chairs and other devices to assist the mobility challenged are permitted on the Carroll Trail. The Parties further agree that general public encompasses persons walking animals provided that the animals are on a leash. 4. The Parties agree that the Easement and the Use thereof is confined to that portion of the Carroll Trail as outlined Yellow and Green on Schedule "A" to this Easement Agreement. The Parties agree that the Carroll Trail is 12 feet in width. The Parties agree that the Use does not include any part of the Golf Course and the Use is limited to the Carroll Trail for the purposes as set out in paragraph 3 hereof. 5. TGCC covenants that: a. At no time shall it restrict, impede, prevent or otherwise stop any Use on the Carroll Trail. The Town agrees that TGCC may restrict, impede, prevent or block persons from entering the Golf Course provided that such restriction does not prohibit any Use on the Carroll Trail; b. It shall not erect any barriers on any part of the Carroll Trail except in cases of emergency; c. It shall not erect any signage that state, imply or suggest that the general public cannot enter, use or traverse all or any part of the Carroll Trail. Any signage erected by the TGCC shall be at its own expense and maintenance; d.lt shall not construct, repair or modify any part or section of the Unshared Carroll Trial for any reason, including any emergency, without the express written approval of the Town. e. It shall regularly perform inspections of the Shared Carroll Trail as reasonably required, as directed by the Town and/or pursuant to any statute, regulation, by-law and/or common law at its sole cost without contribution of the Town; f. It shall diligently perform all repairs, maintenance and upkeep to the Shared Carroll Trail as reasonably required, as directed by the Town and/or pursuant to any statute, regulation, by-law and/or common law at its sole cost without any contribution from the Town. Such repair, maintenance and upkeep shall be performed by the TGCC within a reasonable time period after any inspection or when an issue of disrepair comes to the attention of the TGCC whichever occurs first. The TGCC agrees that any disrepair of the Shared -4- Carroll Trail or any repair, maintenance or upkeep that prevents any Use of the Shared Carroll Trail shall be performed by the TGCC without delay. The TGCC covenants that during any maintenance, repair or upkeep of the Shared Carroll Trail that it will attempt to provide a route around such area under repair and complete such repair as quickly as possible; g.lt shall not have the right to determine which members of the general public are permitted to use the Carroll Trail; h.lt shall not perform any work, maintenance, upgrade, upkeep or repair to the Unshared Carroll Trail without the express written permission of the Town; i. That so long as the Golf Course remains a golf course, it shall use its best efforts not to alter, modify or change the character of the lands immediately adjacent to the Carroll Trail except as required for the maintenance and repair of the Golf Course and Shared Carroll Trail as provided in this Easement Agreement. TGCC acknowledges that so long as the Golf Course remains a golf course, it will use its best efforts that the lands that immediately adjacent to the Unshared Carroll Trail are to retain their current character. To achieve such goal the TGCC covenants that so long as the Golf Course remains a golf course, it shall exercise its best efforts, in regards to the lands immediately adjacent to the Carroll Trail, not to: 1. cut down or remove any trees except as required for safety and/or good forestry practices; 2. remove any bushes or vegetation except such weeds or vegetation are noxious or hazardous or obstruct the Carroll Trail; 3. spray any toxins except as required to control any noxious or hazardous weeds or plants or required for the maintenance of the Golf Course; 4. place any substance on the Golf Course Lands or Old Golf Course Lands that would be contrary to any act, by-law, regulation whether federal, provincial or municipal; j. the maintenance and repair (including the determination of the standard of maintenance and repair) of the Unshared Carroll Trail shall be the sole responsibility of the Town; -5- k.the Town retains the right of preapproval for any works, modifications, maintenance including benches and other ancillary items on any and all portions of the Carroll Trail; and, I. It shall maintain a policy of general commercial liability for bodily injury, death and injury to property sustained by third parties in an amount not less than $10,000,000.00 on the Golf Course Lands, Old Golf Course Lands, the Shared Carroll Trail and Unshared Carroll Trail naming the Town as an insured party. On an annual basis it shall provide a copy of such insurance policy to the Town upon request of the Town. The TGCC covenants to keep the Town and its employees, elected officials, contractors, servants, agents, licensees and customers indemnified against any and all claims and demands whatsoever by any person, whether in respect of damage to person or property, arising out of or occasioned by the maintenance (excepting the Unshared Carroll Trail), failure to maintain (excepting the Unshared Carroll Trail), Use or occupancy of the Golf Course, Golf Course Lands, Old Golf Course Lands, Unshared Carroll Trail and Shared Carroll Trail or any part thereof including, but not limited to, any negligent actions of omissions of the TGCC or its members, shareholders, officers, directors, employees, officers, invitees, contractors, servants, agents, licensees and customers. The TGCC further covenants to indemnify the Town and its employees, elected officials, invitees, servants and agents with respect to any encumbrance on or damage to the Carroll Trail and/or personal injury, death or property damage to any person including, but not limited to, invitees, customers, general public, agents, employees, employees of the Town, contractors or licensees occasioned by or arising from the act, default, or negligence by the TGCC (including but not limited to breach of the TGCC's covenants as contained in this Easement Agreement) or its officers, agents, members, customers, servants, employees, contractors, customers, invitees or licensees. Such indemnification shall include any intentional or negligent actions of the TGCC causing environmental damage to the Golf Course or neighbouring lands. The TGCC shall carry public liability and property damage insurance including personal injury liability, contractual liability, employers' liability and owners' and contractors' protective broad form property damage occurrence insurance coverage with respect to the Golf Course and Carroll Trail and their use by the TGCC, coverage to include the activities and operation conducted by the TGCC, coverage for the Use of the Carroll Trial and any other person performing work on behalf of the TGCC and those for whom the TGCC is in law responsible in any part of the Golf Course and Carroll Trail. -6- m. It is liable for want of repair of the Shared Carroll Trail. The Town shall not be liable in any manner whatsoever for any loss, injury or damage to any person, any customer or invitee* of TGCC or TGCC that is in any way connected to the establishment, Use, repair, want of repair, reconstruction or operation of the Shared Carroll Trail unless caused by the negligent or wilful acts of an employee or agent of the Town while acting within the scope of his or her employment or agency respectively This provision shall survive the termination of this Easement Agreement. n.The Town, and its employees, agents and contractors, shall be permitted to access the Carroll Trail for maintenance, repair and inspection of the Unshared Trail, and inspection of the Shared Trail, pursuant to this Easement Agreement. The Town, and its employees, agents and contractors shall be permitted to access adjoining properties owned, leased or used by the Town. 6. The Town covenants that: a. It shall it shall maintain all signage as erected by the Town with respect to the location of the Carroll Trail, use of the Carroll Trail and permitted Uses of the Carroll Trail; b.the maintenance, repair and upkeep (including the determination of the standard of maintenance and repair) of the Unshared Carroll Trail shall be the sole responsibility and cost of the Town; c. if the Town receives a written notice from 1199734 Ontario Limited that there is an event of default under any mortgage security it holds over the Golf Course Lands or the Old Golf Course Lands then the Town shall, at its sole cost and expense, attend to the preparation of a reference plan showing the Carroll Trail and the Town shall proceed to re-register this Easement Agreement only against the Carroll Trail as described on such reference plan and to delete the registration of this Easement Agreement as originally registered against the Golf Course Lands and the Old Golf Course Lands; and, d. It shall maintain a policy of general commercial liability for bodily injury, death and injury to property sustained by third parties in an amount not less than $10,000,000.00 on the Unshared Carroll Trail naming the TGCC as an insured party. On an annual basis it shall provide a copy of such insurance policy to the Director of Community Services and the Golf Course Manager. The Town covenants to keep the TGCC and its employees, contractors, servants, agents, licensees and customers indemnified against any and all claims and demands whatsoever by any person, whether in - 7 - respect of damage to person or property, arising out of or occasioned by the maintenance, failure to maintain, Use or occupancy of the Unshared Carroll Trail. 7. The Parties agree that the Carroll Trail does not include any washrooms, lavatories or restrooms of any kind (whether or not such facilities are open to the general public or used by the general public) and any washrooms located near, beside or on the Carroll Trail are the sole property of the TGCC and at the sole risk of the TGCC. 8. The Parties agree that the Easement Agreement shall be registered on title to the Golf Course Lands and Parts 5 and 6 on Plan 41R-8799 at the expense of the Town. 9. The Parties agree that the Town has entered into an agreement with Her Majesty the Queen in right of the Province of Ontario represented by the Minister of Transportation of the Province of Ontario (the "MTO") dated August 10, 2009 whereby the MTO has permitted the Town to construct and use a cartpath beneath highway 3 (the "MTO Agreement"). The Town covenants that it will use its best efforts to obtain an assignment of the MTO Agreement to the TGCC in a form that is agreeable to the TGCC and the Town and until the MTO Agreement has been assigned and registered by the Town at the Town's sole expense then the Town grants a sub-easement to the TGCC, and all mortgagees of the TGCC, on the same terms as the MTO Agreement over PART 1, 41R-8819. 10. The Parties agree that this Easement Agreement is for perpetuity unless released by both the Parties in writing and shall bind all successors, assigns, encumbrances, mortgagees, heirs, transferees, licensees, contractees and agents. 11. Any notice, direction or other instrument required or permitted to be given to the Vendor hereunder shall be in writing and may be given by mailing the same postage prepaid or delivering the same addressed: to the Town at: 200 Broadway Tillsonburg, ON N4G 5A7 with a copy to the Solicitor for the Town at: Mandryk, Stewart & Morgan 65 Bidwell Street Tillsonburg, ON N4G3T8 -8- to the TGCC at: 101 John Pound Road Tillsonburg, ON N4G 4H3 with a copy to the Solicitor for the Purchaser at: Gibson, Bennett, Groom & Szorenyi 36 Broadway Tillsonburg, ON N4G 3P1 12.This Easement Agreement, including the Schedules and the Definitive Agreement, together with the agreements and other documents to be delivered pursuant hereto, constitutes the entire agreement between the Parties hereto pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether written or oral, of the parties hereto and there are not warranties, representations or other agreements between the parties in connection with the subject matter except as specifically set forth or referred to herein. No amendment, waiver or termination of this Easement Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver of any provision of this Easement Agreement shall be deemed or shall constitute a waiver of any other provision nor shall any such waiver constitute a continuing waiver unless otherwise expressly provided. 13. This Easement Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the Province of Ontario. Each of the parties hereto hereby irrevocably submits and attorns to the jurisdiction of the courts of the Province of Ontario. Any action brought for the interpretation of this Easement Agreement or the enforcement of any term of this Easement Agreement shall be brought at the City of Woodstock, in the County of Oxford. 14. This [Easement Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, legal representatives, successors and permitted assigns. 15. Neither this Easement Agreement nor any rights or obligations under this Easement Agreement shall be assignable by any Party without the prior written consent of the other Parties. Subject to that condition, this Easement Agreement shall enure to the benefit of and be binding upon the Parties and their respective heirs, executors, administrators, successors (including any successor by reason of amalgamation of any Party) and permitted assigns. 16. In the event that any provisions contained in this Easement Agreement shall be declared invalid, illegal or unenforceable by a court or other lawful -9- authority of competent jurisdiction, this Easement Agreement shall continue in force with respect to the enforceable provisions and all rights and remedies accrued under the enforceable provisions shall survive any such declaration, and any non-enforceable provision shall to the extent permitted by law be replaced by a provision which, being valid, comes closest to the intention underlying the invalid, illegal and unenforceable provision. 17.Any terms in this Easement Agreement which are masculine shall be interpreted as either masculine or feminine. For convenience, headings have been inserted into this Easement Agreement and shall not be used in any manner to interpret this Easement Agreement. For the purposes of interpretation, any words in this Easement Agreement that are singular shall be interpreted as if they include the plural and any words in this Easement Agreement that are plural shall be interpreted as if they include the singular. If any term contained in this Easement Agreement is defined in the Definitive Agreement then the interpretation contained in the Definitive Agreement shall apply to the Easement Agreement. If there is any conflict or difference in the interpretation between the Easement Agreement and the Definitive Agreement then the Easement Agreement shall be paramount. 18. Should any provision of this Easement Agreement require judicial interpretation or arbitration, it is agreed that the court or arbitrator interpreting or construing the same shall not apply a presumption that the terms thereof shall be more strictly construed against one party by reason of the rule of construction that a document is to be construed more strictly against the party who itself or through its agent prepared the same, it be agreed that both parties have participated in the preparation hereof. 19. For the consideration of FIVE ($5.00) dollars, the receipt and sufficiency of such is hereby acknowledged, the Mortgagees consent to this Easement Agreement and agree that they are bound by the terms of the Easement Agreement. The Mortgagees further agree that if they become mortgagees in possession and/or sell the Golf Course Lands and/or Old Golf Course Lands and/or foreclose on such mortgage then the terms of this Easement Agreement shall bind any purchasers of the Golf Course Lands and/or the Old Golf Course Lands. Signed this day in Tillsonburg, Ontario The Tillsonburg Golf and Country Club Limited Per: .,President -10- Vice-President (We have authority to bind the Corporation.) The Corporation of the Town of Tillsonburg Per: Mayor ^L ^'"' ..... ^' :' ~ -"'{ ^-"^•'•-"^Administrative Officer (We have authority to bind the Town.) Bank of Montreal Per:§ Larry Beattie ———— j- —— Portfolio Manager (We have authority to bind the Corporation.) 11 99734 Ontario Li Per: E."Pafrick Carroll, President (I have authority to bind the Corporation.) SCHEDULE A BAGE 1 mtmm ' !$ v ainaanos