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3316 To authorize an encroachment agreement with Nikos Bar & Eatery.BY-LAW NUMBER 3316 OF THE CORPORATION OF THE TOWN OF TILLSONBURG A BY-LAW to authorize an encroachment agreement with Niko's Bar & Eatery. WHEREAS the town is desirous of entering into an encroachment agreement with Niko "s Bar & Eatery of 102 Broadway; ,THEREFORE the Council of the Town of Tillsonburg enacts as follows: 1. THAT the agreement attached hereto as Schedule "A" be incorporated herein as though a part of this document; 2. TI -IAT the Mayor and Clerk be hereby authorized to execute the attached agreement marked as Schedule "A" on behalf of the Corporation of the Town of Tillsonburg. 3. THAT By-law 3268 is hereby repealed. READ A FIRS AND SECOND TIME THIS I DAY OF J 20089 READ A THIRD AND FINAL TIME AND PASSED THIS DAY OF 20080 MAYOR -Stephen Molnar CLERK-Michacl Graves AGREEMENT 41, AGREEMEN']Fii,iadc1tiQuadruplicate tlils u-" day of.),.,,_tJe__ 12008 BETWEEN: NIKOS BAR & EATERY hereinafter called the "Owners" OF F THE FIRST PART and THE CORPOIZATION OF THE TOWN OF TILLSONBURG hereinafter called the "Municipality" 0 - TIDE SECOND PAjZT I The Owncrs represent that they are the OA4tcnf the lands and premises (hereinafter called 4f.thc lands") dcscribcd as Lot 1077, Plan 500, East side of Broadway, Town offillsonburg, County of Oxford. 2. The Owners havc requested the Municipality to grant them permission to maintain and use a fence that encroaches on Keating Walkway (hereinafter called "the encroachment") as depleted on the plan which is Schedule "A" annexed hereto and made part of this agreement. 3. Tlic lands of the Owners are known municipally as 102 Broadway. 4. The Council of the Town offillsonburg, at its meeting of May 12, 2008 has agreed to grant such permission to the Owners to maintain the encroachment as previously described subject to the terms, conditions and provisions of this Agreement and this Agreement has been authorized by a by-law oil' the Council, being By-law 3316. NOW "rFIEREFORE I in consideration of the premises, and other good and valuable consideration and the covenants and agreement hereinafter to be perfori-ned, the parties hereto covenant and agree as follows: 1. The Municipality, during the pleasure of" its Council., subject to the terms, conditions and covenants of this Agreement shall allow the Owners for the tcmi indicated below the privilege of using the lands that encroach upon Keating Walkway in the Town of Tillsonburg more particularly depicted in Schedule "A" annexed hereto for the term described herein. 2. I'lic Owners shall maintain tlic encroachment in all rcspccts to the satisfaction of the Municipality upon its direction. 3. 'I he Owii%cTs will always indemnify and keep indemnified the Municipality against all actions, Suits, claims and demands which may be brought against or made upon the Municipality and a(Tainst all loss, costs, damages, charges and expenses whatsoever which may be incurred, sustained or paid by the Municipality in consequence of the encroachment ✓ Own IV." iQ 61 4- r% '1 *0133, if OrA) or otherwise by reason ofthe exercise by the Own L% ­f ��V L -d maintain this cilcroachnicnt over and upon th - Kaid walkway and the Owners hereby grant to I the Municipality full power and authority to settle any such actions.'su-i-t-s'clairns and demands on such terms as the Municipality to pay to the Municipality on demand all monies paid by the Municipality in pursuance of any such settlement and also such sum shall represcrit tile rcasonable costs of the Municipality or its solicitors in defending or settling any scmzgu such action, suits, claims or demands. TlIC Owners shall provide proof of liability insurance '04r to the Town. 4. If at any tin-ic hereinafter the Council of the Municipality in its sole discretion, resolves to terminate the privileges granted therein, the Owners agree to remove the encroachment or aff any part or parts thereof within sixty (60) days next after notice in writing of such resolution has been delivered or posted by prepaid mail to the owners at their address at the aforesaid prci-niscs and the Owners shall not be entitled to claim any damages whatsoever for the removal ol'thc encroachment or any part or parts thereof. 5. If the owners shall fall to maintain the encroachment in a safe condition to the satisfaction of the Municipality in its sole discretion or fall to remove the encroachment or any part ot'pails thcrcot'pursuant to the provisions of the next preceding paragraph of this Agreement or if, on the request of the Municipality, they refuse or neglect to repair the encroachment or any part or parts thereof within a reasonable time, the determination of which time can be made by the Municipality in its sole discretion, or remove the encroachment or any part or parts thereof within sixty (60) days after demand therefore by tyle Municipality, then the Municipality may cause the required work to be done or the required removal to be effected either by its owti servants or by some other person and the costs shall be determined and evidenced by a certificate ofthe Treasurer of the Municipality and this determination shall be final. All such costs') charges and expenses so paid or incurred on the lands until fully discharged by the payrnctit thereof and the jurisdiction as a debt owing by the Owners to the Municipality or niay at the sole option of the Municipality be recovered by if from the Owners in like manner as niunicipal taxes as prescribed in Section 326 of the Municipal Act, R.S.O. 19901 Chapter M.45. 6. No length oftin-ic or ofcnJoyincrit by the Owners of the encroachment or any part or parts thereof shall ensure or give a right to the Owncrs or their heirs, successors or assigns to niaintain the encroachment or any part or parts thereof or acquire an casement or shall deprive the Municipality by the operation of any statute of limitation or otherwise of any right to require the rcnioval of the encroachment or any part or parts thereof. 7. The owners covenant and agree with the Municipality that the encroachment upon the silid walkway shall be limited to the cricroachn-icrit depicted in Schedule "A" of this Agreement and that they will not increase, extend or enlarge or pen -nit the increase,. extension or enlargement of the said encroachment in any manner whatsoever. 8. Tile owners covenant and agree with the Municipality that this agreement may be registered against the title to the lands and that the costs of the preparation and registration of this agreement shall be paid by the Owners. 9. The owners covenant and agree with the Municlpali,,y that 1 40,A ent of the Owners transferring or selling the lands or any part thereof, the Zm&dsma �Slt'a I forthwith notify the Municipality in writing of sucl'i transfer or sale together with the name and address of the tran,Sfcrcc or purchaser. 10. The owners covenant and agree with the Municipality that for the purpose of this agreement, notice may be given to the Owner or owners for the time being, by mailing the notice post paid and addressed to the owners of the address of 102 Broadway, Tillsonburg, Ontario.. 1. The owners shall allovv, the continuation ofinaintenanccl repair, or replacement works as deemed necessary on the walkway by the Municipality from time to time. 12. The owners agree that they shall install cast iron fencing that is five feet tall with no pointed edges at the top and with at least one gate being 32 inches wide. The fence shall be installed along the entire perimeter of the encroachment. The fencing shall be capable of being removed at any time and upon removal the walkway shall be returned to its original state at no cost to the municipality. 12. This agreement and everything herein contained shall respectively enure to the benefit of and by binding upon the said parties hereto, their heirs, executors, administrators, successors and assigns rcspcctivel y. In witness whereof the said parties hereto, have hereunto set their hands and seals and the Corporations have hereunto caused to be fixed their Corporate Seals under the hands of their duly authorized of -iccrs in that bchall'of this day of' 2008. SIGNED, SEALED and DELIVERED in the presence of (OWNER ,EATERY & BA (THE CORPORATION OF THE (TOWN OF"T',d1-- LSONBURG �NIAYOR (STEPHEN MO NAR '0 (CLERK 4 (MICHAIL GRAVES 0 t \ \ \\ \ > M ""'� ` \ �\ 0 7 cf) 0 \V1 F Y \ \ �. 011 cj) C) \1X 0 M cf) z 00 0 3 Z 7� - 0 EXIT' (D r - C 0rn WD................. ....... ........ .......... ........... 0 z z ...................... ................... 1> M . ..................... < M cf) ............ rn to DX 0 Z .................... M ..... ... -4 (P z .................. ................. ................. ..................... co.......... ................ ............ .... ................ .................. ......................... 100, M 'j" PUBLIC WALKWAY o A: O/v 244 James Street South PROPOSED PATIO Hamilton, Ontarto i I I I -c R.F. LINTACK > 1 NIKOS EATERY & BAR ARCHITECT LBP 31313 > Tel: (905' ' 522-6155 102 lk�;ALWAY -- INCORPORATED Fax: (905) 522-2209 i T7 -,EF.- -,) I!- -- I g NO 0 0 CC) o A: O/v 244 James Street South PROPOSED PATIO Hamilton, Ontarto i I I I -c R.F. LINTACK > 1 NIKOS EATERY & BAR ARCHITECT LBP 31313 > Tel: (905' ' 522-6155 102 lk�;ALWAY -- INCORPORATED Fax: (905) 522-2209 i T7 -,EF.- -,) I!- -- I g NO