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HomeMy WebLinkAbout91-168 THE CORPORATION OF THE TOWN OF NEWCASTLE BY-LAW 91-168 Being a by-law to authorize the execution of an agreement with Ontario Hydro to permit Ontario Hydro to use specified unopened road allowances in Concession 1, former Clarke Township from 1991-1995. ~he Corporation of the Town of Newcastle hereby enacts as follows: 1. That the Mayor and Clerk are hereby authorized to execute on behalf of the Corporation of the Town of Newcastle, and seal with the Corporation Seal, an Agreement between Ontario Hydro and the said Corporation, in the form attached hereto as "Schedule A". 2. That Schedule 'A' attached hereto forms part of this by-law. By-law read a first time this 15th day of October 1991. By-law read a second time this 15th day of October 1991. By-law read a third time and finally passed this 15th day of October 1991. MAYOR CLERK LICENCE This licence made as of the 15th day of October, 1991. BETWEEN: THE CORPORATION OF mE TOWN OF NEWCASTJ..E (hereinafter called the "Ucensor") - and - ONTARIO HYDRO (hereinafter called the "Licensee") WHEREAS: A. The licensee is constructing or proposes to construct a 500 kilovolt steel transmission line (the "Transmission Line") in an existing transmission line corridor, which corridor passes through part of the Geographic Township of Clarke in the Town of Newcastle, in the Regional Municipality of Durham (the "Hydro Corridor"); B. In order to access portions of the Hydro Corridor for the purposes of constructing the Transmission Line, the Licensee requires access over and across the lands more particularly described as the unopened road allowances between i) Lots 10 and 11, ii) Lots 18 and 19 and ill) 26 and 27 south of Highway 401 all in Concession 1, Geographic Township of Clarke, Town of Newcastle, Regional Municipality of Durham (the "Premises"); C. Title to the Premises is vested in the licensor by operation of the Municipal Act and the Re~on of Durham Act; D. The Council of the Licensor has enacted By-law 91-168 authorizing the making of this licence ("By- law-I68"); and E. The parties have agreed to make this licence to permit the Premises to be used by the Licensee for access to portions of the Hydro Corridor. WITNESSETH THAT the licensor licences to the Licensee and the licensee licences and takes from the licensor, subject to the terms and conditions set forth herein the part of the unopened road allowances comprising the Premises, to be used and occupied by the licensee for the purpose only of access to the Hydro Corridor (this "Licence") for a term commencing on the 15th day of October, 1991, and ending on the 31st day of December, 1995, subject to earlier termination as hereinafter provided. This licence is made upon the following terms and conditions, which the licensor and the licensee covenant and agree to keep and perform: 1. licence Fee The licensee shall pay a licence fee of Two ($2.00) Dollars in advance on the fIrst day of the term of this licence. 2. Allowable Use The Licensee, its employees, contractors, agents, workmen and invitees shall use the Premises only for the purpose of access to the Hydro Corridor and delivery of construction materials thereto. The licensee shall be entitled to improve the Premises at the licensee's sole cost, for the better use of the Premises for such purpose, but only in accordance with a plan submitted to and approved by the Director of Public Works of the licensor (the "Director"). The use of the Premises shall be subject at all times to the right of the licensor, the Regional Municipality of Durham or any supplier of public utilities to enter upon the Premises to construct, operate and maintain such watermains, sanitary sewers, conduits, pipelines, cables or other installations (the 'Works") as may be required from time to time across, under and through the Premises together with the right of such parties, their servants, agents, contractors and workmen with all necessary materials, equipment, machinery and vehicles to enter upon the Premises at all times and to pass and re-pass thereon for the purpose of installing, constructing, reconstruction, examining, altering, repairing, renewing or replacing and maintaining the Works or any part thereof whether or not any part to be so constructed, installed, repaired, renewed, altered, replaced or maintained is situate upon the Premises. The licensee hereby releases the licensor from any and every claim which mayor might arise out of the exercise by the Licensor, the Regional Municipality of Durham or any other supplier of public utilities of any of the rights hereby granted or which may arise out of the existence, operation, construction, reconstruction, examination, repair, renewal, replacement and maintenance of the Works. 2 3. Authority to Make A.il'eement The Ucensee acknowledges and agrees that the Ucensor has authority to enter into this Ucence, that every provision hereof is authorized by law and is fully enforceable by the parties and that this Ucence is made by the Ucensor in reliance on the acknowledgement and agreement of the Ucensee. 4. Maintenance and Repairs The Ucensor shall have no responsibility or obligation of any nature whatsoever with respect to the repair or maintenance of the Premises. Subject to an improvement approved by the Director, the Ucensee shall maintain the Premises during the term of this Ucence as an unopened road allowance to reasonable standards and to the satisfaction of the Director at the cost of the Ucensee. 5. Services The Ucensor shall not be required to furnish any services or utilities to the Premises during the term of this Ucence. The Ucensee assumes full and sole responsibility for the supply of and payment for such services and utilities, if any are required by the Ucensee. 6. Surrender of Premises At the expiration of the term of this Ucence, the Ucensee will peaceably yield up to the Ucensor the Premises and the Ucensee shall ensure that the Premises are in the same condition as is required to be maintained pursuant to Article 4 and if required by the Director, the Ucensee shall restore the Premises to its original condition., prior to this Licence, at the cost of the Licensee. 7. Inspection The Ucensor shall have the right at all times to inspect the Premises. 8. Insurance NOT USED 9. ~ (a) The Ucensee shall pay for all taxes, special or other assessments and other governmental charges (hereinafter called "real estate taxes") levied or assessed upon the Premises and the improvements which may be situate thereon, provided the same are due and payable during the term of this Ucence. Any real estate taxes (or installments thereof, if payable in installments) shall be apportioned so that the Ucensee shall pay only that portion of real estate taxes as falls within the term of this Ucence. If allowed by law, the Ucensee may pay for real estate taxes in installments. The Ucensee shall not be obligated to pay any income tax, tax on rents or rentals, profits tax, excise tax or other similar tax charge that may be payable by or chargeable to the Licensor under any present or future law of the Province of Ontario in which the Premises are located. (b) The Ucensee shall have the right, by appropriate proceedings, to protest or contest any assessment or reassessment for real estate taxes, or any special assessment, or the validity of either, or of any change in assessments or the tax rate. ( c) The Ucensee shall be entitled to receive any tax refunds properly allocatable to the term of this Ucence, as it may be extended, and relating to taxes paid by the Ucensee, as a result of any such contests or proceedings. 10. Com,pliance With Law (a) During the term of this Ucence, the Ucensee shall, at its sole cost and expense, promptly comply with all laws, ordinances, orders, rules, regulations and requirements of all federal, provincial and municipal governments and governmental agencies, which are applicable to the Premises, to the improvements which may be situate thereon, or to the use, manner of use or occupancy thereof. (b) After prior notice to the Licensor, the Ucensee shall have the right to contest by appropriate legal proceedings at the Ucensee's sole cost and expense and with counsel of the Ucensee's choosing, the validity of any law, ordinance, order, rule, regulation or requirement with which, by the provisions of this Ucence, it is obligated to comply. If by the terms of any such law, ordinance, order, rule, regulation or requirement, compliance therewith may be legally held in abeyance without incurring any lien or charge of record against the Premises, and without subjecting the Licensor to any fines, penalties or any other liability for failure to comply therewith, the Licensee may postpone compliance until the final determination of any such proceedings, provided that all proceedings shall be prosecuted with due diligence. 3 11. Default If the Licensee shall default in the performance of any of its obligations under this Licence and if such default shall continue for five days after notice thereof from the Licensor specifying in what manner the Licensee has defaulted (except that if such default cannot be cured within said five-day period, this period shall be extended for a reasonable additional time, provided that the Licensee commences to cure such default within the five- day period and proceeds diligently thereafter to effect such cure), the Licensor may cure such default and any costs and expenses incurred by the Licensor therefor shall be deemed additional rent, or the Licensor may lawfully enter the Premises and repossess the same as of the former estate of the Licensor. 12. Notices Any notice, request, communication or demand under this Licence shall be in writing and shall be considered properly delivered when given or served personally or by registered mail to the Licensor at 40 Temperance Street, Bowmanville, Ontario, Attention: Ms. Patti L. Barrie, Town Clerk and the Licensee at P.O. Box 1090, Brighton, Ontario KOK 1HO Attention: Construction Contact Officer, Lines, Stations and Hydraulics. Such notice, request or demand shall be deemed to have been delivered on the date it is delivered if given or served personally or on the third day following mailing, if it is mailed. If at any time notice is delivered by mail and there is any cessation (whether anticipated or existing) of mail service affecting the delivery of such notice, the notice shall not be deemed to have been delivered until five (5) business days after the date that normal mail service is restored. 13. A!:.!:.iV'ment and Sub-licence The Licensee may not assign this Licence or sub-licence all or any part of the Premises at any time during the term hereof without the consent of the Licensor which consent may be unreasonably withheld. 14. Non-Exclusive Licence The Licensee acknowledges that this Licence of the Premises is non-exclusive. The Licensee shall have the first right of use of the Premises for the purpose set out herein subject to the right of others to use the Premises when the Premises are not in use by the Licensee. 15. Indemnity of Licensor The Licensee shall defend the Licensor and hold the Licensor harmless from and against all claims, actions, losses, damages and expenses (including reasonable legal fees) incurred by the Licensor in connection with the loss of life, personal injury or damage to property caused during the term of this Licence, in whole or material part, by the act or omission of the Licensee, its agents, employees, licensees, invitees or contractors, arising (i) from any occurrence in or on the Premises, or (ii) from the use by the Licensee of any part of the Premises, or (ill) from any work undertaken by the Licensee on the Premises; provided that the provisions of this Article and the indemnity hereunder shall not be applicable when such claims, actions, losses, damages or expenses are caused wholly or in material part by the act or omission of the Licensor, its agents, employees, contractors, licensees or invitees. The Licensee shall have the right to defend, at its own expense and by counsel of its own choosing, and shall defend, against any claim to which the aforesaid indemnity agreement would apply, and the Licensor's right to defend or settle any such claim shall be limited to those cases where the Licensee has failed or refused to defend. 16. Counter,parts This Licence may be executed in several counterparts, each of which shall be deemed to be an original, and all counterparts shall constitute one and the same instrument. This Licence shall not be binding and in effect until at least one counterpart, duly executed by the Licensor and the Licensee, has been delivered to each party hereto. 17. Re~tration of Licence The Licensee shall not register this Licence or notice of this Licence against the title to the Premises. 18. Governinlf Law This Licence shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the parties submit to the jurisdiction of the courts of the Province of Ontario in order to enforce this Licence. 19. Invalidity If any term, covenant or condition of this Licence to any extent is held invalid or unenforceable, the remainder of this Licence shall not be affected thereby and each term, covenant and condition of this Licence shall be separately valid and enforceable to the fullest extent permitted by law. 20. Approval of By-law This Licence of the Premises to the Licensee shall not be binding and in effect until the terms of this Licence Agreement and By-law 91-168 have been approved by the Ontario Municipal Board. \ . 4 21. Miscellaneous (a) No remedy or election given by any provision in this Licence shall be deemed exclusive unless so indicated, but each shall, whenever possible, be cumulative in addition to all other remedies in law or equity which either party may have arising out of the default of the other party and failure to cure such default within the applicable grace period. (b) Failure of either party to cure a default of the other under this Licence shall not render such non- defaulting party in any was liable therefor, or relieve the defaulting party from any of its obligations hereunder. 22. Brodin", ~eement This Licence shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. 23. Entire Aireement This Licence contains the entire agreement of the parties and shall not be modified except by an instrument in writing which is signed by both parties. IN WITNESS WHEREOF, this Licence has been duly executed by the parties hereto as of the day and year first above written. THE CORPORATION OF THE TOWN OF NEWCAS11-E By: An : ONTARIO HYDRO By: falk: ~"1\ Title: . Pr..jo<:. ~~."u"... ~r/ A/~Af Name: KE::r. TN G-::z L /f3€tR.- T Title: . CONS'I. CON'1~Cr OfF;J:CGIf. And: .... " ; , . 5 SCHEDULE "8"