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HomeMy WebLinkAboutBy-law No. 2017-017 THE CORPORATION OF THE MUNICIPALITY OF BAYHAM BY-LAW NO. 2017-017 A BY-LAW TO AUTHORIZE THE EXECUTION OF AN ENCROACHMENT AGREEMENT BETWEEN THE MUNICIPALITY OF BAYHAM AND JUSHUA MATHESON AND RYAN VANWYNSBERGHE WHEREAS the Council of the Corporation of the Municipality of Bayham is desirous of entering into an encroachment agreement with Jushua Matheson and Ryan Vanwynsberghe regarding property known municipally as 33 Robinson St., Port Burwell, Ontario NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF BAYHAM ENACTS AS FOLLOWS: 1. THAT the Mayor and Deputy Clerk be and are hereby authorized to execute the Encroachment Agreement between Jushua Matheson and Ryan Vanwynsberghe and the Municipality of Bayham 2. THAT this by-law shall come into full force and effect upon final passing. READ A FIRST, SECOND AND THIRD TIME AND FINALLY PASSED THIS 16th DAY OF FEBRUARY, 2017. 1,-0771 MAYOR / ACL"ARK THE CORPORATION OF THE MUNICIPALITY OF BAYHAM BY-LAW NO. 2017-017 A BY-LAW TO AUTHORIZE THE EXECUTION OF AN ENCROACHMENT AGREEMENT BETWEEN THE MUNICIPALITY OF BAYHAM AND JUSHUA MATHESON AND RYAN VANWYNSBERGHE WHEREAS the Council of the Corporation of the Municipality of Bayham is desirous of entering into an encroachment agreement with Jushua Matheson and Ryan Vanwynsberghe regarding property known municipally as 33 Robinson St., Port Burwell, Ontario NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF BAYHAM ENACTS AS FOLLOWS: 1. THAT the Deputy Mayor and Clerk be and are hereby authorized to execute the Encroachment Agreement between Jushua Matheson and Ryan Vanwynsberghe and the Municipality of Bayham 2. THAT this by-law shall come into full force and effect upon final passing. READ A FIRST, SECOND AND THIRD TIME AND FINALLY PASSED THIS 16th DAY OF FEBRUARY, 2017. fr 74 • EPUTY MAYOR C,� THE CORPORATION OF THE MUNICIPALITY OF BAYHAM BY-LAW NO. 2017-017 A BY-LAW TO AUTHORIZE THE EXECUTION OF AN ENCROACHMENT AGREEMENT BETWEEN THE MUNICIPALITY OF BAYHAM AND JUSHUA MATHESON AND RYAN VANWYNSBERGHE WHEREAS the Council of the Corporation of the Municipality of Bayham is desirous of entering into an encroachment agreement with Jushua Matheson and Ryan Vanwynsberghe regarding property known municipally as 33 Robinson St., Port Burwell, Ontario NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF BAYHAM ENACTS AS FOLLOWS: 1. THAT the Mayor and Deputy Clerk be and are hereby authorized to execute the Encroachment Agreement between Jushua Matheson and Ryan Vanwynsberghe and the Municipality of Bayham 2. THAT this by-law shall come into full force and effect upon final passing. READ A FIRST, SECOND AND THIRD TIME AND FINALLY PASSED THIS 16th DAY OF FEBRUARY, 2017. MAYOR V 'CL"�RK� LRO# 11 Notice Receipted as CT137268 on 2017 03 06 at 16:03 The applicant(s)hereby applies to the Land Registrar. yyyy mm dd Page 1 of 9 Properties PIN 35324- 0176 LT ✓ Remove SR'interest Description PART ROBINSON ST PLAN 12 BAYHAM DESIGNATED AS PART 2, 11 R-4833; MUNICIPALITY OF BAYHAM Address ROBINSON STREET PORT BURWELL Consideration Consideration $0.00 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 MUNICIPALITY OF BAYHAM Address for Service PO Box 160 Straffordville, Ontario NOJ 1Y0 This document is not authorized under Power of Attorney by this party. This document is being authorized by a municipal corporation TOM SOUTHWICK, Deputy Mayor, and I, PAUL SHIPWAY, CAO/Clerk. Party To(s) Capacity Share Name MATHESON, JUSHUA TAYLOR Address for Service 62 Pine Street Tillsonburg, Ontario N4G 0A2 This document is not authorized under Power of Attorney by this party. Name VANWYNSBERGHE, RYAN PATRICK Address for Service c/o 62 Pine Street Tillsonburg, Ontario N4G 0A2 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. The land registrar is authorized to delete the notice on the consent of the following party(ies)The Corporation of the Municipality of Bayham Schedule: See Schedules Signed By Michael George Charles Szorenyi 36 Broadway, Box 5 acting for Signed 2017 03 06 Tillsonburg Applicant(s) N4G 4H3 Tel 519-842-3658 Fax 519-842-5001 I have the authority to sign and register the document on behalf of the Applicant(s). LRO# 11 Notice Receipted as CT137268 on 2017 03 06 at 16:03 The applicant(s)hereby applies to the Land Registrar. yyyy mm dd Page 2 of 9 Submitted By GIBSON BENNETT GROOM &SZORENYI 36 Broadway, Box 5 2017 03 06 Tillsonburg N4G 4H3 Tel 519-842-3658 Fax 519-842-5001 Fees/Taxes/Payment Statutory Registration Fee $63.35 Total Paid $63.35 File Number Applicant Client File Number: S17-092 Party To Client File Number: LCG:17791 • THIS ENCROACHMENT AGREEMENT DATED THE it-, DAY OF r-eb ru 0-1'1 y ,2017 BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF BAYHAM (Hereinafter called the°Municipaliity") -and- JUSHUA TAYLOR MATHESON and RYAN PATRICK VANWYNSBERGHE (Hereinafter called the'Licensee") WHEREAS the Municipal Act,2001 S.O.2001,c.25,as amended,provides that the Municipality has jurisdiction within the following spheres:highways,including parking and traffic on highways at Section 11(3) 1; culture, parks, recreation and heritage at Section 11(3) 5 and structures, including fences and signs at Section 11(3)7; AND WHEREAS the Licensee is the owner in fee simple of the lands and premises situate, lying and being in the Municipality of 8ayham in the County of Elgin being Part Lot 19 and Part Lot 20,West Side of Robinson, Plan 12 designated as Part 1 Reference Plan 11R-4833 and being 33 Robinson Street, Port Burwell, Ontario — Roll No. 3401-002-001-2370-0000 (hereinafter referred to as the°lands°); AND WHEREAS the easterly limit of the building encroaches (the 'Encroachment') onto the Municipality road allowance for Robinson Street,as shown as Part 2 on 11R-4833; AND WHEREAS the Licensee has applied to the Municipality for their own benefit and for the benefit of their heirs, successors and assigns for permission to have the said portion of the easterly limit of the building to encroach on the said Robinson Street and the Municipality has agreed to give this permission upon the condition that the Licensee enters into and executes this Agreement,which the Licensee 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 Licensee to be observed,fulfilled and performed,the Municipality hereby grants to the Licensee permission to maintain the said Encroachment,until the earlier of (i) the date of removal of the Encroachment from Robinson Street (ii) the execution of the discontinuance of the Agreement provisions by the Municipality as outlined in Section 8,9 and 10. AND THE LICENSEE in consideration of the granting by the Municipality of such permission hereby covenants and agrees with the Municipality as follows: 1. The Licensee warrants and represents to the Municipality that they are the beneficial owners in fee simple with absolute title of the lands. 2. The Municipality hereby grants unto the Licensee, their employees, agents, lessees, permitted successors,permitted assigns,heirs and executors during the currency of this • Encroachment Agreement,and for so long as the same shall remain in good standing all of the terms and provisions hereof, permission to allow•the said portion of the Encroachment as shown on Schedule'A'to remain in its present location,subject to the terms and provisions of this Encroachment Agreement. 3. The Licensee will comply with all the provisions of By-law No. 2015-068, the Encroachment By-law, and this Agreement shall not supersede or nullify any of the provisions of By-law No.2015-088. 4. The Licensee will at its own cost, charge and expense and to the satisfaction of the Director of Public Works and Operation, his successor, or his designate keep and maintain the said Encroachment in good and proper repair and condition at all times without impairment to or interference with Robinson Street 5. The Licensee releases,waives and forever discharges the Municipality and its agents, officials, servants, contractors, representatives, elected and appointed officials, successors and assigns (collectively, the 'Related Parties"), of and from ail 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 Licensee however caused, arising or to arise by reason of the permission granted • pursuant to this Agreement. 6. The Licensee will,from time to time, and at all times, save, defend and keep harmless and fully indemnify the Related. Parties 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 Encroachment 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 are parties to this Agreement,for or by reason of or on account of the granting by the Municipality to the Licensee of the permission granted by this Agreement and/or the exercise by the Licensee of such permission and/or the erection • and maintenance of the Encroachment and/or anything in'any manner relating to the Encroachment,and that in case any action,suit claim or demand is brought against or made upon the Related Parties, or 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 Encroachment,except any action,suit,claim or demand resulting from the negligence of the Related Parties,the Municipality may, upon written notice to the Licensee,and if not forbidden by the Licensee within fourteen(14)days thereafter,if the Municipality sees'fit, compromise any such actions, suits, claims or demands on such terms as the Municipality sees fit, and the Licensee shall forthwith pay to the Municipality the sum or sums to be paid together with such sum as shall represent the reasonable costs of the Municipality and its solicitor in defending or settling any such actions, suits, claims or demands, but if the Licensee forbids such compromise within the fourteen(14) day period,or if no such compromise be effected, then the Licensee may be made a party to such actions,suits, claims or demands and will in every case fully indemnify the Related Parties.Without limiting the generality of the foregoing, no claims shall be made against the Related Parties by the Licensee for damage occurring to the Encroachment as a result of the Municipality's Public Works operations. • 7. The Licensee shall obtain and maintain public liability (personal injury and property damage)insurance during the term of this Agreement in respect of the Encroachments in the amount of at least Two Million Dollars ($2,000,000.00), with the insurance premium being prepaid and the Municipality named as an additional insured. The Licensee shall supply the Municipality with a certificate co}'filming that such insurance is in force upon execution of this Agreement and from time to time as required by the Municipality. The policy will provide that it is not cancellable unless prior notice by registered mail has been received by the Municipality from the insurer not less than thirty (30)days prior to the cancellation date. 8. The Director of Public Works and Operations,in his sole opinion,shall cause notice to be sent, pursuant to Section 13 of this Agreement, to revoke this Agreement where (a) the Encroachment jeopardizes the health and/or safety of the public or is not in the public's best interest (b) a breach of the terms and conditions attached to this Agreement has occurred; (c) the Agreement has expired. 9. Where the Licensee fails to comply with Section 8 of this Agreement,within a minimum of ninety-six(96)hours of receipt of notice,the Encroachment may be removed or tilled in and dosed up pursuant to the provisions of By-law No.2015-068. 10. In the event that,at any time,the Encroachment is destroyed or removed in whole or in part and the encroachment ceases for a period of six (6) months or more this Encroachment Agreement shall forthwith terminate and the further continuance of the Encroachment shall not be permitted. 11. The construction, installation, occupation, operation and maintenance of the Encroachment shall comply with all applicable statutes,by-laws and regulations. 12. The Licensee acknowledges that the administration and enforcement of this Agreement, the use and,occupation of the Encroachment(whether permitted hereunder or not)shall be completely net and carefree to the Municipality, of all direct or indirect expenses, costs,charges,compensation,penalties and fees,and the Licensee shall observe every covenant in this Agreement at its sole expense, except as expressly set out to the contrary herein. AND IT IS HEREBY UNDERSTOOD AND AGREED by and between the parties hereto as follows: 13. 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; or sent by prepaid registered mail (except during a postal disruption or threatened postal disruption),to the applicable address set out below. (a) in the case of the Municipality: