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HomeMy WebLinkAbout2007-077 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2007-077 being a by-law to authorize the entering into a Licence Agreement with Canadian National Railway Company. the owner Part of Lot 3, Broken Front Concession former Township of Darlington, now in the Municipality of Clarington, Region of Durham and to rescind By-law 2006-219 WHEREAS, the Council of the Corporation of the Municipality of Clarington has approved the alignment of the Waterfront Regeneration Trail through these lands. shown in Schedule A and described as the right-of-way for Canadian National adjacent to the tracks of the Railway at Mile 288.9 of the Kingston Subdivision; AND WHEREAS, the owner of the lands have authorized a signing officer to execute a license for a period of ten (10) years; AND WHEREAS, Council has approved the recommendations contained in Addendum to Report PSD-118-06; NOW THEREFORE the Council of the Corporation of the Municipality of Clarington enacts as follows: 1. That the Mayor and Clerk are hereby authorized to execute on behalf of the Corporation of the Municipality of Clarington, and seal with the Corporation's seal, a Licence Agreement between Canadian National Railway Company on Part of Lot 3 in Broken Front Concession former Township of Darlington. now in the Municipality of Clarington, Region of Durham. 2. THAT By-law 2006-219 is hereby rescinded. BY-LAW read a first time this 16th day of April 2007 BY-LAW read a second time this 16th day of April 2007 BY-LAW read a third time and finally passed this 16th day of April 2007 J@~- L---/ ~ ___ _.j <2.- -...,.- ". - 'x" "A.^:-C~ unicipal Clerk - o ~^ ~~ -a ° s ~ c~ 0 .~ .~. c 0 .- m 0 4- c~ U U L 0 4- 0 0 !~ C U Q' O Q? J O B- ~ C C 7 O ~ ~ ~ fD u++ ~ ~ J ~ ~ N A .~ O o- ca o ~ dQ Contrail # 306 2 6 ! 9 THiS LICENSE AGREEMENT ENTERED INTO an the~l day of ~ v , 20 D 7 BENdEEN: CANADIAN NA71ONAL RAILWAY COMPANY, a corporation having its head office at 935 de la Gauchetiere Street West, Montreal, Quebec H36 2M9 (hereinafter called the "Railway') AND: CORPORATION OF THE MUNICIPALITY OF CLARINGTON, a body corporate duly authorized to enter into this Agreement as it represents, located at 40 Temperance Street, Bowmanville, Ontario U C 3A6 (hereinafter called the "Licensee") WITNESSETH THAT: The Railway hereby gives permission to the Licensee to construct, maintain and use a pedestrian bridge and pathway {hereinafter called the "Pathway"} along and upon the right-of-way and adjacent to the tracks of the Railway at Mile 288.90 of the Kingston Subdivision, in the Municipality of Clarington, Province of Ontario, in the location as shown on the plan {Schedule "A"y, annexed hereto and forming part hereof, subject to the following terms and conditions agreed to by the parties: i. All costs to construct the Pathway shall be paid by the Licensee. 2. The Licensee agrees to reimburse the Railway for all direct and indirect casts incurred by the Railway in association with the Pathway, and undertaken by the Railway, or its designated agents, which are caused by the construction and/or use of the pathway. The licensee shall, during the term of this license, repair and maintain the Pathway, at the risk and expense of the Licensee, to the satisfaction of the Railway. In default of such repair or maintenance, the Railway may, by notice in writing, direct the licensee to do or perform the same within 48 hours of receipt of such notice, which notice should be deemed to be received 48 hours from the time of mailing by registered mail. Should the Licensee fail to comply with such direction, the Railway may close the Pathway, do the work and the Licensee shall, upon presentation of accounts therefore, pay to the Railway all costs so incurred. 4. The Licensee shall not use, or permit to be used, equipment within the Railway right-of-way without first advising the Railway and arrange for flagging protection as required by the Railway. Flagging is to be provided by the Railway at the expense of the Licensee. Said advice and protection must be arranged at least four (4) weeks in advance of starting work. Any damage wi11 be repaired at the expense of the Licensee. Page i of 5 ~~ 5. The licensee shall, during the term of this License, at the Licensee's own risk and expense, erect and maintain along the Pathway such other warning signs or protective devices or flagman as the Railway shall, in its sole discretion, deem necessary or desirable. 6. The Licensee shall, at the Licensee's own risk and expense, erect and maintain a six (fi) foot high chain link fence (or an alternative form of barrier acceptable to the Railway or as may 6e required by a regulator}, placed on the track side of the Pathway, and along the full extent of the Pathway far the length that the Pathway occupies the Railway's property. 7. The Licensee shall not at any time or in any manner interfere with the operation, maintenance or use by the Railway or others of the Railway's tracks or right-of-way. The Licensee shall not use, or cause or permit to be used, the Pathway at any time or in any manner so as to affect or interfere with any works or undertakings (whether of the Railway or otherwise) now or hereafter lawfully upon the Railway's tracks or right-of-way. 8. The Licensee agrees to indemnify and save harmless the Railway from all damages, claims, injuries, losses, expenses, and/or any responsibility of whatsoever nature (hereinafter called the "damages") arising from or attributable to, whether directly or indirectly, the exercise by the Licensee or others, of any of the rights or privileges given under this Agreement. The Licensee for itself and others hereby waives the right to any claim against the Railway and its employees for such damages, except damages caused by the negligence of the Railway or its employees.. Without limiting the generality of Section 8, the Licensee agrees to be responsible for, and to indemnify and save harmless the Railway from and against all loss and expense of whatsoever nature, vrhich may occur by reason of pollution/contamination, that is not pre-existing to this agreement, occurring as a result of this Agreement or anything done in relation thereto. In the event of evidence of pollution/contamination, the burden shaft be with the Licensee to prove that the pollutipnl contamination was not a resuh of this Agreement or anything done in relation thereto. 9.1. The licensee shall immediately carry out all measures which the Railway, in its sole discretion, considers necessary to keep the Works free and clear of all pollution/ contamination (hereinafter referred to as "Environmental Contamination") resulting from or occurring during the Licensee's occupation or use of the Railway's lands (hereinafter called the "Demised Premises"), such condition to be confirmed (at the option of the Railway and at the sole expense of the Licensee) by apost-termination environmental inspection/audit of the Demised Premises to be carried out by the Railway. The Licensee shall be solely responsible for the cost of all work carried out to correct any Environmenta( Contamination which occurs on the Demised Premises, or which occurs on other lands as a result of the Licensee's occupation or use of the Demised Premises. 9.2. if the Licensee fails to correct any Environmental Contamination to the satisfaction of the Railway and any public authority having jurisdiction, the Railway may perform such work by its employees or agents. The Railway may charge the Licensee from time to time for all the cosu incurred by the Railway in correcting such Environmental Contamination, plus fifteen per cent (15%) and the Licensee shall pay the Railway's invoice or invoices for such costs within ten {70) days of receipt of each invoice. In the event such remedial work is carried out by any public authority, the cost of such work shall be borne by the Licensee. Page 2 of 5 G~ 9.3. The responsibility of the Licensee to the Railway with respect to the environmental obligations contained herein shall continue to be enforceable by the Railway notwithstanding the termination of this Agreement. i0. As an essential part of the consideration without which the Railway would not be party to this Agreement, the Licensee accepts the various stipulations herein contained, limiting the liability of the Railway, and the Licensee also agrees to pay to the Railway, for the rights herein granted, the sum of FIVE HUNDRED ($500) DOLLARS plus G5T per annum, payable in advance at the office of the Railway on each anniversary of this Agreement for a term often (10) years. 11. "The Licensee shall have the option to renew this License on the same terms and conditions except the consideration to be paid by the Licensee to the Licensor for the renewal term of the License, by giving written notice to the Railway not less than sixty (60) days prior to the termination of the term of this License or extension of the term of it which is then in force. The consideration payable by the Licensee during the successive ten {10) year periods shall be subject to review for each successive (10) year period of the continuance of this Agreement and set at amounts which, in the opinion of the Railway, are fair and equitable, but in ho event shall a yearly rate be less than the yearly rate payable during the previous ten (i0} year period. The Licensor shall give the Licensee at least thirty (30) days written notice of the Licensee's opinion of the amount of the proposed consideration for the extension of the term of this license in question, provided that the licensee may give the Licensor written notice before the termination of the term or extension of the term in force, withdrawing the Licensee`s exercise of the option to renew this License. Failing the giving of the aforesaid written notice by the Licensee to the Licensor, withdrawing the Licensee's exercise of the option to renew, the consideration for the extension of the term or the extension of the term in question shall be the amount set out in the aforesaid written notice given by the Licensor to the Licensee.. 12. The Licensee shall not have the right to transfer or assign, in whole or in part, this Agreement nor any right arising hereunder without the written consent of the Railway, which shall not be unreasonably withheld. 13. This Agreement shall continue in forte from the date hereof until terminated, at any time, by either party hereto giving written notice to the other party of not less than thirty (30) days. Should the licensee default in carrying out any of the terms and conditions of this License, the Railway may, at its option, terminate this License forthwith upon giving notice to the Licensee. It is also agreed that the Railway shall not have to refund to the Licensee any sum payable in advance hereunder. Notice hereunder shall be effectively given if delivered or sent by registered fetter, or facsimile addressed: To the Licensee: MUNICIPALITY OF CLARINGTON Engineering Services Department 40 Temperance Street, Bowmanville, ON, LtC 3A6 Attn: Peter Windolf, Manager Park Development Phone: 905.623-3379 To the Railway: CANADIAN NATIONAL RAILWAY COMPANY Business Development and Reat Estate 1 Administration Road, Concord, ON, L4K 169 Attn.: Ms. Susan Sze Phone: 905-760-5004, Facsimile: 905-760-5010 Page 3 of 5 ~,X Qi~ 14. The Railway may on 30 day notice, terminate this Agreement without cause and without compensation to the Licensee. 15. Upon the termination of the Agreement, the Licensee shall forthwith, at its own risk and expense, and within 120 days, close all accesses to the Pathway and remove the Pathway including the footings, deck, fencing, etc. from the lands of the Railway and restore the Railway's premises to a condition satisfactory to the Railway. The Railway may, at its option, perform such work at the risk and expense of the licensee. 16. It is mutually agreed that, upon notification to the Licensee, the Railway may, at its option, acting reasonably, and at the risk and expense of the Licensee, perform any work or supply any materials which, in the opinion of the Railway, may be required, and in the event that the Railway does so, the Licensee shall pay to the Railway the cost and expense thereof, forthwith on receipt of an account therefore from the Railway. 17, The Licensee undertakes to use this Pathway solely as a recreational trail. It is understood and agreed that the Licensee shall not use the said Pathway for purposes other than that mentioned above, failing which the Railway reserves the right to close all accesses and remove the Pathway without notice or delay, at the Licensee's own risk and expense, as provided for in Article 14 of the present License. 18. This Agreement is confidential and the Agreement or any of its terms and conditions shall not be disclosed to any third party, person or association except and to the extent as may be required by law or upon the prior written consent of all parties hereto. 19. The Licensee will procure and maintain throughout the term of this Agreement or any renewal thereof, commercial general liability insurance with insurance companies licensed to provide Liability Insurance in Ontario ,protecting both the Railway and the Licensee against liability for the bodily injury and the death and for damage to or destruction of the property by the licensee, as well as the exposures contemplated by Clauses 8 and 9 of this Agreement, with liability coverage in an amount df not less than $S,D00,000 per occurrence, and such higher limits as the Railway may reasonably require from time to time. It is understood that the employees of the Licensee shall not be considered employees of the Railway. 20. The insurance provided herein shall. name the Railway as an additional insured and shall apply to the Railway and the Licensee {the Insured) in the same manner and to the same extent as if a separate policy had been issued to each and shall contain a cross liability clause. 20.1. The Licensee agrees that the insurance provided herein does in no way limit the Licensee's liability pursuant to the Indemnity provisions of the Agreement. 20.2. The Licensee shall have no claim against the Railway or the Railway's insurance for any damage the Licensee may suffer, except damages caused by the gross negligence of the Railway or its employees, and the Licensee shall require insurers under the insurance stated above to waive any right of subrogation by the insurers against the Railway. 20.3. The Licensee shall provide to the Railway evidence of such insurance having been obtained and maintained in the form of a certificate of insurance and such insurance shall not be subject to cancellation except after at least ninety {90) days' prior written notice to the Railway. If the Page 4 0/ 5 ,,;< Licensee fails to comply with the requirements hereof to obtain insurance, the Railway may, but need not, obtain such insurance and keep the same in effect and the Licensee shall pay to the Railway the premium cost thereof upon demand. 20.4. The Rahway shall not be responsible for the payment of any premiums with respell to such insurance and shall not be responsible for notifying the insurers of any occurrence or auident in or around the land occupied by the Licensee. iN NrITNESS WHEREOF, the parties hereto have executed these presents. CANADIAN N 8! L RAILW Y arraoveo /n/~s~m` rotLy Signature "'. {~ . ~ir~ta r Pcs ~c~ h Panted Name I Maslnu r ~o.,fral R rdr Title W@ness ~ ' Date `J 4 ~ ` 7 /O ~ CORPQRATfON OF THE MUNICIPALITY OF ClARiNGroN April 19, 2007 igjp°, Page 5 of 5 Wrcness