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2014-169 Agreement with Jerry and Diane PopiukThe Corporation of the Township of Oro-Medonte By-law No. 2014-169 A By-law to Authorize the Execution of An Agreement Between The Corporation of the -Township of Oro-Medonte and Jerry Popiuk and Diane Jean Popiuk Whereas Council of the Township of Oro-Medonte did on the 19th day of May 1999, enact By-law No. 99-50, Being a By-law to provide policy for encroachments on road allowances and municipally owned property; And Whereas the Township, pursuant to By-law No. 99-50, has granted permission to maintain the said Encroachment(s) upon the condition of entering into an Encroachment and License Agreement; And Whereas the Municipal Act, 2001,5.0. 2001, c.25, Section 224, as amended, states that it is the role of Council to ensure that administrative practices and procedures are in place to implement the decisions of Council; And Whereas the Council of The Corporation of the Township of Oro-Medonte deems it desirable to enter into an Encroachment and License Agreement with Jerry Popiuk and Diane Jean Popiuk; Now Therefore the Council of the Township of Oro-Medonte hereby enacts as follows: 1. That the Mayor and Clerk be authorized to execute the Agreement attached hereto as Schedule "A" and forming part of this By -Law. 2. This by-law shall take effect on the final passing thereof. By-law read a First, Second and Third time, and Passed this 12th day of November, 2014. The Corporation of the Township of Oro-Medonte Mayor, H.S. j4ughes Irwin Encroachment and License Agreement made this day of 2014. Between: The Corporation of The Township of Oro-Medonte (the "Township") Of The First Part -and- Jerry Popiuk and Diane Jean Popiuk (the "Owner") Of The Second Part Whereas the Owner is the owner of certain lands and premises situated in the Township of Oro-Medonte, which lands are more particularly described in Schedule "A" attached hereto (the "Owner's Lands"); And Whereas the Township is the owner of the lands shown as Lake Shore Promenade in accordance with Registered Plan 626, in the Township of Oro-Medonte (the "Township's Lands"); And Whereas the Owner maintains encroachments on the Township's Lands to the extent described in Schedule "B" attached hereto (hereinafter collectively referred to as "the Encroachment(s)"); And Whereas the Township, pursuant to By-law No. 99-50, being a By-law to Provide Policy for Encroachments on Road Allowances and Municipally Owned Property, has granted to the Owner permission to maintain the said Encroachment(s) upon the condition that the Owner enters into this Agreement, which the Owner has agreed to do; Now Therefore This Agreement Witnesses that in consideration of the premises, and of the covenants and agreements hereinafter contained on the part of the Owner to be observed, fulfilled and performed, the Township hereby grants to the Owner permission to maintain the said Encroachment(s) automatically terminating at the earlier of: (i) the date of removal of the Encroachment(s) from the Township's Lands; or (ii) the sale or transfer of the Owner's Lands; or (iii) five (5) years from the date of execution of this Agreement. In the event the Owner wishes to renew this Agreement upon the expiry of the five (5) year term herein granted, the Owner may, provided he is not in default of his obligations hereunder and upon sixty (60) days prior written notice to the Township, apply to renew same, taking all necessary steps and paying all appropriate fees in effect at the time to do so. Such Application shall be considered in accordance with the Township's policies and practices in place at that time. Upon the sale or transfer of the Owner's Lands, the Owner shall forthwith notify the Township in writing thereof and shall provide the Township with the name and address of such Transferee or Purchaser who shall be required to enter into a new Agreement with the Township (and which Agreement shall be in like form and content as herein) and pay all appropriate fees as are required by the Township in entering into such replacement Agreement. In the event the Transferee or Purchaser fails to enter into a replacement Agreement with the Township, the Encroachment(s) shall forthwith be removed by the Owner at his sole expense; and failing which the Township may do so, and the Owner and Purchaser or Transferee shall be jointly and severally liable to the Township for the cost of demolition or removal. In no case shall this Agreement be assignable by the Owner. 2. During the term of this Agreement, and any renewal thereof, the Owner shall have the exclusive use and possession to the interior of the boathouse; provided however that all other open air structures located on the Township's Lands remain subject to the public's right of access. In Consideration Of the granting by the Township of such permission, the Owner hereby covenants and agrees with the Township as follows: The Owner agrees to pay to the Township an annual fee as stipulated in the Township's current Fees and Charges Bylaw for Encroachment Agreements. The annual fee will be payable no later than the 1 st day of May in each year, and may be added to the tax roll for the Owner's Lands, if required, by the Township. 2. The Owner shall, forthwith upon execution of this Agreement, provide the Township with an independent Engineer's report as to the structural integrity of the encroaching structure(s) to the satisfaction of the Township's Chief Building Official. Such report shall include clear photographic evidence of the Encroachment(s) identified thereon. 3. The Owner will at its own expense and to the satisfaction of the Township's Chief Building Official, keep and maintain the said Encroachment(s) in good and proper state of repair and will not make any related modifications to the Encroachment(s), without first obtaining the consent of the Township, which consent may be arbitrarily withheld. Should the Owner fail or neglect in maintaining the Encroachment(s) in a good and safe state of repair to the satisfaction of the Township's Chief Building Official, on thirty (30) days prior written notice to the Owner, the Owner will, at its own expense, notwithstanding any other provision in this Agreement, remove the said Encroachment(s) from the Township's Lands, without being entitled to any compensation whatsoever for such removal and the permission given herein for the maintenance of the Encroachment(s) shall be revoked and shall be deemed at an end. If the Encroachment(s) are not removed by the Owner as aforesaid, the Township may do so, and the cost of demolition and removal shall be at the sole expense of the Owner. 4. Nothing herein contained shall be construed as giving to the Owner anything more than permission to maintain the said Encroachment(s) until such time as the removal of such Encroachment(s) from the Township Lands. The Owner agrees that under no circumstances shall additional Encroachment(s) be constructed or placed on the Township's Lands. 5. The Owner hereby releases, waives and forever discharges the Township and its respective agents, officials, servants, contractors, representatives, elected and appointed officials, successors and assigns, of and from all claims, demands, damages, costs, expenses, actions and causes of action, whether in law or equity, in respect of death, injury, loss or damage to the person or any property of the Owner howsoever caused, arising or to arise by reason of the permission granted pursuant to this Agreement. 6. Notwithstanding any consent or approval given by the Township with respect to any plans, specifications or other construction -related matters, the Township will not be in any way liable for the design or construction of any structure, and the party that has obtained the consent or approval of the Township shall be wholly liable for such design and construction. 7. The Owner shall facilitate the construction of any and all utilities over or under the said Encroachment(s), as may be required from time to time. The parties acknowledge and agree that the permission granted in this Agreement does not in any way whatsoever diminish the rights of the Township, or any gas, telephone, telegraph, electric light or other public utility company, their respective officers, servants, workers, employees, agents, and contractors, to enter at all times upon the Encroachment(s) for the purpose of constructing, repairing, maintaining, replacing or removing any sewers, mains, culverts, drains, water pipes, gas pipes, poles, wires or other services and installations and appurtenances thereto. The Owner shall not be entitled to any damages or compensation as a result of the reasonable exercise of the Township's or utility company's rights contained in this paragraph. 8. The Owner will from time to time and at all times hereafter will and truly save, defend and keep harmless and fully indemnify the Township, its officers, directors, servants, workers, employees, agents, and contractors, and any other corporations, boards, commissions or bodies having utilities or services which may in any manner be affected by the having utilities or services which may in any manner be affected by the erection or maintenance of the said Encroachment(s) and their respective officers, directors, servants, workers, employees, agents, and contractors, from and against all actions, suits, claims and demands whatsoever which may be brought against or made upon any or all of them and from and against all loss, costs, charges, damages and expenses whatsoever which may be sustained, incurred or paid by any or all of them, regardless of whether or not they be parties hereto, for or by reason of or on account of the granting by the Township to the Owner of the permission hereby granted and/or the exercise by the Owner of such permission and/or the erection and maintenance of the said Encroachment(s) and appurtenances thereto and/or anything in any manner relating thereto should any such action, suit, claim or demand be brought against or made upon the Township, or any of its officers, servants, workers or employees, the Township may, upon written notice to the Owner, and if not forbidden by the Owner within fourteen days thereafter, if the Township shall see fit, compromise any such actions, suits, claims or demands on such terms as the Township shall see fit, and the Owner shall thereupon forthwith pay to the Township the sum or sums to be paid together with such sum as shall represent the reasonable costs of the Township or its Solicitor in defending or settling any such actions, suits, claims or demands, but if the Owner forbids such compromise within the said period, or if no such compromise be effected, then the Owner may be made a party to such actions, suits, claims or demands and will in every case fully indemnify the Township, its respective officers, servants, workers or employees. 9. The construction, installation, occupation, operation and maintenance of the Encroachment(s) shall comply with all applicable statutes, by-laws and regulations including, but not limited to, the issuance of a building permit(s). 10. The Owner shall obtain and maintain public liability (personal injury and property damage) insurance covering the maintenance of the Encroachment(s) in the amount of at least Two Million Dollars ($2,000,000.00), naming the Township of Oro-Medonte as additional insured. The Owner will provide evidence of such insurance annually, to the Township no later than the 1St day of May in each year, naming the Township as an additional insured. In the event the Owner's insurer is unable or unwilling to add the Township as an additional insured to the Owner's policy, the Township agrees to add the Owner as an additional insured to its public liability policy, and any incurred premium, surcharge or administration fee occasioned thereby shall be the responsibility of and paid by the Owner in addition to those fees set out in paragraph 1. 11. In addition, all such sums and costs so paid, sustained or incurred by the Township, as aforesaid, and all such annual fees, or further or other fees to be paid by the Owner as set out herein, shall form and constitute a charge or lien on the Owner's Lands until fully discharged by payment thereof and may be collected in a like manner as taxes. 12. The Township, its officers, servants, workers, employees, agents and contractors under its control or supervision shall have the right from time to time and at all reasonable times during the currency of this Agreement, to enter in and upon the said lands or any part thereof, with all necessary workers, plant, equipment and material for the purpose of inspecting the said Encroachment(s) provided that such inspection shall not free or relieve the Owner in any way whatsoever from the liability under the covenant hereinbefore set forth to keep and maintain the said Encroachment(s) in good and proper repair and condition. 13. (a) All notices, consents, approvals or other communications permitted or required to be given under this Agreement (collectively "Notices") shall be in writing, shall not be unreasonably withheld or delayed unless otherwise specifically provided for in this Agreement, and shall be: personally delivered; sent by prepaid registered mail (except during a postal disruption or threatened postal disruption), or; sent by facsimile, in each case to the applicable address set out below: (i) in the case of the Township: 148 Line 7 South, Oro-Medonte, ON LOL 2E0 Attention: Clerk (ii) in the case of the Owner: Jerry Popiuk and Diane Jean Popiuk 51 Stanley Avenue Oro-Medonte, ON LOL 1 TO (b) Any Notice shall be deemed to have been validly and effectively given and received: if personally delivered, on the date of delivery; if sent by prepaid registered mail, on the third (3rd) business day next following the date of mailing, provided, however, that during any postal disruption or threatened postal disruption, delivery shall be in person; and if sent by facsimile, on the business day next following the day on which it was sent. (c) Either party under this Agreement may from time to time by Notice to the other party change its address for service under this Agreement. 14. Nothing in this Agreement derogates from, interferes with, or fetters the exercise by the Township of all of its rights and obligations as a municipality (whether discretionary or mandatory), or imposes any obligations on the Township in its role as a municipality, and the Township shall not be prevented from or prejudiced in carrying out its statutory rights and responsibilities, including its planning rights and responsibilities. Nothing in this Agreement derogates from, interferes with, or fetters the exercise by the Township's officers, employees, agents, representatives or elected and appointed officials of all of their rights, or imposes any obligations on the Township's officers, employees, agents, representatives or elected and appointed officials, other than as expressly set out in this Agreement. 15. This Agreement may be registered on title to the Owner's Lands and the cost of preparation as stipulated in the Township's current Fees and Charges By-law as the application fee for encroachment agreements, and registration of the same shall be borne by the Owner. 16. This Agreement is not assignable by the Owner and shall not enure to the benefit of the successor and assigns of the Owner. In Witness Whereof the Township has caused to be affixed its corporate seal under the signatures of its duly authorized officers. Executed this day of k , 2014. Q) The Corporation of The Township of Oro-Medonte Per: Name: S. Hug s Title: Mayor Name:/J:'[)-&lrwin Title: Clerk I/We have authority to bind the Corporation. In Witness Whereof the Owner hereto has hereunto affixed its hand. Executed at _ day . `f�� a ri �� Schedule "A" Owner's Lands: Lt 23 PI 626 Oro; Lt 119 PI 626 Oro; Lt 120 PI 626 Oro; Pt Lt 22 PI 626 Oro; Pt 121 PI 626 Oro as in R0999721; Oro-Medonte, 74040-0139 (LT), Municipally known as 51 Stanley Avenue, Schedule "B" Township Lands: Part of Lake Shore Promenade between Kempenfeldt Avenue and Owen Road, Registered Plan 626, designated as Part 3, Plan 51 R-36143, (Geographic Township of Oro), Township of Oro-Medonte, County of Simcoe, being Part of PIN #74040-0003(LT) Existing Encroachments as approved by Township of Oro-Medonte Chief Building Official 1. Frame Boathouse 2. Concrete Pad 3. Stairs All as shown on Plan of Survey 51 R-36143 designated as Part 3 thereon.