Schedule C - Easement Agreement

SCHEDULE "C"
EASEMENT 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
transferred to TGCC (the "Definitive Agreement").
whereby certain lands were
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 multiuse public trail.
The Mortgagees have consented to the terms contained in this agreement.
Easement Agreement August 3, 2012
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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
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")
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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
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
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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
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 th e 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;
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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;
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
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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.
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.
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
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.
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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 1,41 R-________.
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 N4G 3T8
to the TGCC at:
101 John Pound Road
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Tillsonburg, ON N4G4H3
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
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,
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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
Vice-President
(We have authority to bind the Corporation.)
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The Corporation of the Town of Tillsonburg
Per:
Mayor
Chief Administrative Officer
(We have authority to bind the Town.)
Bank of Montreal
Per:
(We have authority to bind the Corporation.)
1199734 Ontario Limited
Per:
E. Patrick Carroll, President
(I have authority to bind the Corporation.)