2015-173 Agreement with Robert GardnerThe Corporation of the Township of Oro-Medonte
By-law No. 2015-173
A By-law to Authorize the Execution of An Agreement Between
The Corporation of the Township of Oro-Medonte and
Robert Gardner
And Repeal By-law No. 2011-153
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,S.O. 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 Robert Gardner;
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. Upon registration of the attached Encroachment and License Agreement, the
Encroachment and License Agreement registered as Instrument #SC936120
shall be at an end, including all rights and obligations thereunder.
3. That By-law No. 2011-153 is repealed in its entirety.
4. This by-law shall take effect on the final passing thereof.
By-law read a First, Second and Third time, and Passed this 231d day of
September, 2015.
p of Oro-Medonte
Schedule A to ByLaw No.,_,a o> � /9-1
Encroachment and License Agreement made this� day of 015
Between:
The Corporation of
The Township Of Oro-Medonte
(the "Township")
Of The First Part
- and -
Robert Gardner
(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 Lakeshore 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 agrees that the Owner has the
right to exclusively use, possess and maintain the said Encroachment(s) but not
substantively expand nor change the character of the Encroachment(s) for a term of
thirty-five years, renewable for a further twenty-five year term.
The right to extend may only be denied if the Owner is not in good standing with
their obligations under this Agreement, the Encroachment(s) are not in a state of
good repair or the Township has declared by by-law or resolution a reasonable
and bona fide requirement for a particular Encroachment(s) to be removed.
In the event the Owner wishes to renew this Agreement upon the expiry of each
thirty-five (35) 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 to do so.
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.
During the term of this Agreement, and any renewal thereof, the Owner shall
have the exclusive use and possession of the Encroachment(s).
The Township agrees to provide reasonable signage indicating the private
nature of the Encroachment(s).
In Consideration Of the granting by the Township of such permission, the Owner
hereby covenants and agrees with the Township as follows:
1. 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 1St 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, retain a qualified
professional engineer to conduct a safety review of the Encroachment(s) and
undertake any necessary repairs, as required by the review, to the reasonable
satisfaction of the Township. The Owner shall provide the Township with a copy
of the safety review and proof that the necessary repairs were undertaken.
3. The Owner will at its own expense, keep and maintain the said Encroachment(s)
in good and proper state of repair. Any such maintenance shall not substantively
expand nor change the character of the Encroachment(s). It is understood that
certain changes may be required for safety reasons.
4. The Owner shall have the right to store the Temporary Encroachment(s)
identified at Schedule "B" of this Agreement on the Promenade, at the Owner's
risk, and the Temporary Encroachment(s) shall be stored in such a way that
same does not impede public access along the Promenade and does not create
or pose a safety hazard to the public. The Township shall have the right to
inspect the Encroachment(s) stored on the Promenade, to ensure that such
storage does not pose a safety hazard to the public or impede access along the
Promenade.
5. The Township or its officials shall not be liable for any damage caused to any of
the Temporary Encroachment(s) while being stored on the Promenade or injury
to the public caused by same, unless same is caused by the negligence of the
Township or its officials.
6. The Owner shall have the rights to maintain, in their present location, any Sub -
Surface Infrastructure (without limiting the generality of this provision), such as
waterlines, electrical cabling, etc. in place at the time of the execution of and
identified at Schedule "B" this Agreement, and shall be entitled to maintain same,
provided that the Owner undertakes to return the Promenade to its pre -
construction state after any maintenance has been completed, and that same
may be removed or relocated, should the Township reasonably require same for
work that needs to be completed on the Promenade.
7. The Township agrees that in the event of an inquiry by any other government
agency with respect to these Encroachment(s), the Township shall advise that it
has given the Owner the rights covered by this Agreement.
8. In the event that the Township makes an application to any government agency
regarding any shoreline improvements, the Owner shall not object, provided that
the proposed shoreline improvements do not impinge on any of the rights
granted in this Agreement.
9. In the event that the Township intends to sell, transfer or convey the Promenade
or parts of the Promenade to another municipal or governmental body, such
conveyance shall be subject to the rights granted to the Owner under this
Agreement.
10. In the event that the Township intends to sell, transfer or convey the Promenade
or parts of the Promenade to a private, non -municipal or non-governmental party,
the Property Owners shall have the right of first refusal to purchase the portions
of the Promenade required to access, exclusively use and maintain their
Structures and/or the entire portion of the Promenade abutting the particular
Property Owner's parcel.
11. 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.
12. 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.
13. 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 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.
14. 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).
15. 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 administration fee occasioned thereby shall
be the responsibility of and paid by the Owner in addition to those fees set out in
paragraph 1.
16. 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.
17. (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 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:
[Insert Address as set out in the latest Assessment Roll]
(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 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.
18. 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.
19. This Agreement shall be registered on title to the Owner's Lands and on title to
the Lakeshore Promenade and registration of the same shall be borne by the
Township.
20. This Agreement shall be transferrable by the Owner, upon the approval of the
Township which shall not be unreasonably withheld, provided that the renewal
period(s) under this Agreement has not expired and that the transferee agrees to
enter into a new Agreement with the same provisions and be bound by the
Agreement.
In Witness Whereof the Township has caused to be affixed its corporate seal under
the signatures of its duly authorized officers.
Executed at
this c23r� day of , 2015.
The Corporation of
The Township Of Oro-Medonte
Per: Aaa,�
Name: H.S. Hug s
Title: Mayor
Per:
jj��
Name: J. oug al
in
Title: irector,orate Services/Clerk
I/We have authority to bind the Corporation.
In Witness Whereof the Owner hereto has hereunto affixed its hand.
Executed at �� this \\
v�
Witnes
day of , 2015.
Robertrdner
Schedule "A"
Owner's Lands:
Lot 55, Plan 626, Township of Oro-Medonte, County of Simcoe.
PIN 58561-0174 (LT)
Municipally known as 17 Myrtle Avenue
Schedule "B"
Township Lands:
Part of the Lakeshore Promenade North-East of Owen Road, Plan 626, designated as
Part 20, Plan 51 R-36152, (Geographic Township of Oro), Township of Oro-Medonte,
County of Simcoe, being Part of PIN 58561-0002 (LT)
Or other description
Encroachments as set out below:
Permanent Encroachments
1. Stairs
2. Concrete Retaining Wall
3. Concrete Dock
As shown on Part 20 Plan of Survey 51 R-36152.
Temporary Encroachments
1. None
Sub -surface Infrastructure
1. Waterline
2. Weepers
3. Electrical cabling
LRO # 51 Notice
The applicant(s) hereby applies to the Land Registrar.
Properties
Receipted as SC1260073 on 2015 11 12 at 10:19
yyyy mm dd Page 1 of 2
PIN 58561 - 0002 LT Affects Part of Prop
Description PT LAKE SHORE PROMENADE PL 626 ORO NE OF OWEN RD BEING PT 20, PL
51R36152; ORO-MEDONTE
Address LAKESHORE PROMENADE
ORO
PIN 58561 - 0174 LT
Description LT 55 PL 626 ORO; ORO-MEDONTE
Address 17 MYRTLE
HAWKESTONE
Consideration
Consideration $ 2.00
Applicant(s)
The notice is based on or affects a valid and existing estate, right, interest or equity in land
Name THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE
Address for Service 148 Line 7 South
ORO-MEDONTE ON LOL 2E0
This document is not authorized under Power of Attorney by this party.
This document is being authorized by a municipal corporation by its Clerk, J. Douglas Irwin.
Party To(s) Capacity Share
Name GARDNER,ROBERT
Address for Service 17 Myrtle Avenue
ORO-MEDONTE ON LOL 1T0
This document is not authorized under Power of Attorney by this party.
Statements
This notice is pursuant to Section 71 of the Land Titles Act.
This notice is for an indeterminate period
Schedule: See Schedules
Signed By
Klaus Nick Jacoby 34 Clapperton St., P.O. Box 350, acting for Signed 201511 09
Stn. Main Applicant(s)
Barrie
L4M 4T5
Tel 7057260238
Fax 7057269197
I have the authority to sign and register the document on behalf of the Applicant(s).
Submitted By
JACOBY & JACOBY, BARRISTERS & SOLICITORS 34 Clapperton St., P.O. Box 350, 201511 12
Stn. Main
Barrie
L4M 4T5
Tel 7057260238
Fax 7057269197
LRO # 51 Notice
Receipted as SC1260073 on 2015 11 12 at 10:19
The applicant(s) hereby applies to the Land Registrar yyyy mm dd Page 2 of 2
Fees/Taxes/Payment
Statutory Registration Fee $62.85
Total Paid $62.85
File Number
Applicant Client File Number: JK -21,747