HomeMy WebLinkAbout22 148 Bruce Township Gateway Sign Encroachment Agreement By-lawTHE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
K B T
BY-LAW
NO. 2022 - 148
BEING A BY-LAW TO AUTHORIZE THE SIGNING OF AN ENCROACHMENT
AGREEMENT WITHIN THE MUNICIPALITY OF KINCARDINE
(4413 Highway 21, Kincardine)
WHEREAS pursuant to the said Municipal Act, Section 8 (1) and 9 provide that
the powers of a municipality under this or any other Act shall be interpreted
broadly so as to confer broad authority on the municipality to enable the
municipality to govern its affairs as it considers appropriate and to enhance the
municipality's ability to respond to municipal issues and has the capacity, rights,
powers and privileges of a natural person for the purpose of exercising its
authority under this or any other Act;
AND WHEREAS 379650 Ontario Limited is the registered owner of the property
municipally known as 4413 Hwy 21, Kincardine, Ontario, and legally described as
PT LT 4-5 CON 14 BRUCE AS IN R318088 EXCEPT PT 2 3R5418;
KINCARDINE, PIN 33277-0022 (LT);
AND WHEREAS the Corporation of the Municipality of Kincardine has requested
an encroachment on the property for the purpose of erecting or installing a
gateway sign for the former Bruce Township;;
NOW THEREFORE the Council of The Corporation of the Municipality of
Kincardine ENACTS as follows:
1. That the Corporation of the enter into an
agreement with 379650 Ontario Limited for an encroachment upon PT LT
4-5 CON 14 BRUCE AS IN R318088 EXCEPT PT 2 3R5418;
KINCARDINE, PIN 33277-0022 (LT); known municipally as 4413 Highway
21, Kincardine, attached hereto as Schedule "A" and forming part of this
by-law.
2. That the encroachment includes a gateway sign as outlined on the sketch
attached to the agreement and shall be subject to the terms and conditions
of the encroachment agreement attached as Schedule "A" to this by-law.
3. That the Mayor and Chief Administrative Officer be authorized to execute
on behalf of The Corporation of the Municipality of Kincardine the
encroachment agreement and any other documents as required.
4. This by-law shall come into full force and effect upon its final passage.
5. This by-law may be cited as the "Bruce Township Gateway Sign
Encroachment Agreement By-law".
READ a FIRST and SECOND TIME this 7t1 day of September, 2022.
READ a THIRD TIME and FINALLY PASSED this 7th day of September, 2022.
Gerry Glover Jennifer Lawrie
Signed with Consign0 Cloud (2022/09/09)
Signed with Cofio.co Cloud (2022/09/09) Verify with verifio.com or Adobe Reader.
Verify with verifio.com or Adobe Reader.
Mayor
Clerk
ENCROACHMENT AGREEMENT
THIS AGREEMENT made this 29' day of July 2022
BETWEEN:
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
(hereinafter called the "Licensee")
Of the First Part
and
379650 ONTARIO LIMITED
(hereinafter called the "Property Owner")
Of the Second Part
WHEREAS 379650 Ontario Limited is the registered owner of the property municipally
known as 4413 Hwy 21, Kincardine, Ontario, and legally described as PT LT 4-5 CON
14 BRUCE AS IN R318088 EXCEPT PT 2 3R5418; KINCARDINE, PIN 33277-0022
(LT), (the `Property"), and more particularly described in Schedule "A" attached hereto;
AND WHEREAS the Licensee is a municipal corporation incorporated pursuant to the
Municipal Act;
AND WHEREAS the Licensee wishes to erect and or install a gateway sign for the
former Bruce Township (the "Encroachment") on the Property, the location of the
Encroachment is more particularly shown in Schedule "B" attached hereto (the
"Encroachment Area");
AND WHEREAS the Property Owner is prepared to permit the Encroachment upon its
Property by the Licensee for the sole purpose of erecting and/or installing a gateway
sign for the former Bruce Township and any appurtenances thereto on the
Encroachment Area, to the Property Owner's sole satisfaction, and at the Licensee's
sole risk and expense, provided that the Licensee enter into this Agreement
acknowledging the terms and conditions of the Encroachment. A concept drawing of the
gateway sign constituting the Encroachment is shown in Schedule "C" attached hereto.
AND WHEREAS the parties wish to set forth herein the terms and conditions regarding
the Encroachment and Encroachment Area;
NOW THEREFOR THIS AGREEMENT WITNESSETH that in consideration of other
good and valuable consideration and the sum of two $(2.00) Dollars of lawful money of
Canada now paid by the Licensee to the Property Owner (the receipt whereof is hereby
acknowledged) and in consideration of an annual fee of one hundred ($100.00) Dollars
of lawful money of Canada paid by the Licensee to the Property Owner as provided
herein, the Property Owner grants, subject to the terms, conditions, covenants and
provisions set forth herein, to the Licensee, a Licence to permit the Encroachment upon
the Encroachment Area of the Property, as follows:
1. DEFINITIONS
Wherever used in this Agreement, the following words and terms have the meanings
set out below:
"Agreement" means this agreement, executed between the Parties,
"Contractor" means the contractor retained by the Licensee to erect and or install the
gateway sign;
"Work" means the construction and installation of the gateway sign on the
Encroachment Area of the Property pursuant to this Agreement.
2. RECITALS
2.1 The Parties agree that the recitals to this Agreement are true and form part of
this Agreement.
3. SCHEDULES
3.1 The Parties agree that the Schedules attached hereto form part of this
Agreement.
4. PERMITTED USE
4.1 The Property Owner agrees to allow the Licensee to install and or erect and
thereafter maintain the gateway sign and any appurtenances thereto as shown in
Schedule "C" on the Encroachment Area.
4.2 Nothing contained herein shall be construed as giving to the Licensee anything
more than permission to install, erect and maintain the Encroachment until such time
as this agreement expires or is terminated or the removal of such Encroachment from
the Property as provided herein.
4.3 The Property Owner agrees that the Licensee may at a future date during the
Term of this Agreement install solar lighting on the gateway sign at the Licensee's sole
expense.
4.4 The Licensee shall not make any additions, alterations or modifications to the
Encroachment which are not authorized or contemplated by this Agreement without
obtaining prior written consent and authorization from the Property Owner.
5. TERM
5.1 The Encroachment shall be permitted to exist for a period of twenty-five (25)
years, commencing from the date this Agreement has been executed by both parties,
unless otherwise terminated in accordance with the provisions of this Agreement (the
"Term").
5.2 Upon the expiration of the Term, and if the Licensee is of the view that the
Encroachment remains necessary or desirable, this Agreement may be renewed, on
the same terms and conditions as outlined herein at the request of the Licensee and
the Property Owner's consent, for a further twenty-five (25) year term or as otherwise
agreed upon by the parties.
5.3 Upon the expiration of the Term, and if this Agreement is not renewed pursuant
to the provisions of this Agreement, the Encroachment shall be removed immediately
and the Licensee shall be required to restore the Property to the condition that existed
prior to the date of this Agreement or as directed by the Property Owner, acting
reasonably, at the Licensee's sole expense.
5.4 If the Property Owner desires to sell, transfer, or convey the Property at anytime
prior to the expiration of the Term any renewal thereof or Termination of this
Agreement the Property Owner shall immediately send notice of same to the Licensee
and shall make all reasonable efforts to ensure that the execution of this Agreement
between the Licensee and any transferee or purchaser be a condition of any such sale,
transfer or conveyance. Should the Property Owner be unable to bind this Agreement
to any purchaser or transferee of the Property, the Licensee shall be responsible for all
costs associated with the removal or demolition of the gateway sign and any
appurtenances thereto representing the Encroachment. The Licensee shall restore and
make good all damage and disturbance that may be caused to the Encroachment
Area, to the satisfaction of the Property Owner, acting reasonably, at the sole expense
of the Licensee.
6. FEES, CHARGES & COSTS
6.1 The Licensee agrees to pay to the Property Owner a licensing fee of one
hundred ($100.00) Dollars of lawful money of Canada upon execution of this
Agreement and every anniversary date thereafter during the Term, as the Property
Owner may direct.
6.2 The Licensee shall pay for all costs and expenses including but not limited to
legal fees for the registration of this Agreement on title, if applicable.
6.3 The Licensee shall be responsible for all costs and expenses associated with all
work related to installing and or erecting the gateway sign to the satisfaction of both
parties.
7. INSTALLATION
7.1 All Work for the purpose of constructing, erecting, installing, and maintaining the
gateway sign, and of making all repairs to the gateway sign shall be done by the
Licensee and the Contractor with prior written consent of the Property Owner. All costs
of the Work shall be borne by the Licensee.
7.2 Following the installation of the Encroachment within the Encroachment Area on
the Property, the Licensee agrees to repair or remedy any damage caused to the land
and any existing trees or vegetation as a result of the construction and installation.
7.3 Any alteration, addition or improvements made to the Encroachment to which the
Property Owner has consented shall be performed and completed to the satisfaction of
the Property Owner, acting reasonably, at the sole risk and expense of the Licensee.
7.4 The Licensee agrees that there shall be no alterations or improvements made to
the Encroachment without the prior notice to the Property Owner.
7.5 The Licensee agrees that if the Encroachment is moved, altered or changed by
the Licensee in any manner not provided for herein during the Term of this Agreement,
without the express written consent of the Property Owner, the Property Owner shall
have the right to immediately terminate this Agreement and, upon termination of the
Agreement, the Encroachment shall be immediately removed by the Licensee at the
Licensee's sole risk and expense and the Licensee shall restore and make good all
damage and disturbance that may be caused to the Encroachment Area, to the
satisfaction of the Property Owner, acting reasonably, at the sole expense of the
Licensee.
7.6 In the event that the Property is to be sold, transferred or conveyed during the
Term or any renewal thereof and the purchaser or transferee does not enter into this
Agreement with the Licensee, the Property Owner shall notify the Licensee of such
pending sale, transfer or conveyance and the Licensee shall forthwith and at its sole
expense remove the Encroachment from the Encroachment Area and the Licensee
shall make such remediation or restoration to the Encroachment Area as may be
necessary by the removal of the Encroachment or if the Property Owner so directs, the
work of remedying or restoring the Encroachment Area shall be done by the Licensee
at its sole expense to the satisfaction of the Property Owner.
7.7 Where, in the opinion of the Property Owner or the Licensee, it is necessary to
alter or remove the Encroachment or any part thereof, the Licensee shall, at its own
cost, and to the satisfaction of the Property Owner, alter or remove the Encroachment
or any part thereof from the Encroachment Area, and shall repair and make good all
damage and disturbance that may be caused to the Encroachment Area upon
receiving notice in writing from the Property Owner to do so, without being entitled to
any compensation whatsoever for such alteration or removal and restoration. If the
Licensee neglects, refuses or fails to complete any removal, alteration or restoration
within ninety (90) days of receiving the aforesaid notice to alter, remove, or restore,
then the Property Owner may alter or remove the Encroachment or parts thereof from
the Encroachment Area, or restore the Encroachment Area as determined by the
Property Owner at the sole cost of the Licensee and a certificate of the Property Owner
as to the cost of such alteration, removal or restoration, which shall be supported by
invoices or documents evidencing the actual costs of such, shall be final and binding
upon the Licensee and the Property Owner may recover such costs from the Licensee.
8. MAINTANENCE
8.1 The Licensee shall, at its sole cost and expense, maintain the Encroachment and
the Encroachment Area in a state of good working order, condition and repair, to the
full satisfaction of the Property Owner, during the Term.
9. ACCESS
9.1 The Property Owner covenants and agrees that the Licensee, and its
respective officers, servants, workers, employees, agents and contractors
under its control or supervision or any of them shall have the right from time to time
and at all reasonable times during the Term of this Agreement, to enter in and upon the
Property or any part thereof, with all necessary workers, machinery, equipment and
material for the purpose of inspecting, constructing, erecting, altering or removing the
Encroachment from the Encroachment Area in accordance with this Agreement. Such
inspection shall not relieve or release the Licensee in any way whatsoever from the
liability under the covenant set out herein to keep and maintain the Encroachment in
good and proper state of repair and condition.
10. INDEMNIFICATION AND INSURANCE
10.1 The Licensee agrees to indemnify and hold harmless the Property Owner from
and against all suits, judgments, claims, demands, expenses, actions, causes of action
and losses and for any and all liability for damages to property and injury to persons
(including death) which the Property Owner may incur as a result of or related to the
Encroachment or Encroachment Area, otherwise than by reason of its own negligence
or willful misconduct or through any negligence or wilful misconduct of its directors,
officers, agents, or invitees, as a result of or arising out of or in relation to any breach
of the terms of this Agreement.
10.2 The Licensee shall put in effect and maintain in its name, at its expense, all the
necessary insurance that would be considered appropriate for a prudent Licensee to
hold and have for undertaking this type of Encroachment for the Term of this
Agreement, with policies and endorsements acceptable to the Property Owner,
including:
General Liability Insurance, for third party bodily injury, personal injury and property
damage to an inclusive limit of not less than Two Million Dollars ($2,000,000) per
occurrence.
The policy shall include:
a) The Property Owner as an additional insured;
b) Cross liability
c) Contractual liability
d) A thirty (30) day written notice of cancellation.
10.3 The Licensee shall provide the Property Owner with a valid Certificate of
Insurance as evidence of the above coverages upon or reasonably thereafter signing
the Agreement. The Licensee shall provide the Property Owner with any renewal or
replacement certificates as may be necessary during the Term of the Agreement.
11. DEFAULT
11.1 If the Licensee defaults on any term, covenant, provision, requirement, or
obligation of this Agreement and if such default continues for ten (10) business days
after the Licensee receives notice of such default by the Property Owner (or such
shorter time as may be required in the cases of an emergency situation being one
which the Property Owner reasonably considers to pose an imminent risk to the safety
of any persons or property or other urgent matters or as otherwise provided for herein),
the Property Owner shall have the right to undertake the completion of such work as
the Property Owner deems reasonably necessary at the expense of the Licensee and
the Property Owner may immediately terminate this Agreement. Such termination shall
be by written notice to the Licensee, except in the case of emergency. In the case of
emergency, the Agreement may be terminated forthwith by the Property Owner. Any
waiver by the Property Owner of any breach by the Licensee or any provision of this
Agreement shall be without prejudice to the exercise by the Property Owner of all or
any of its rights or remedies in respect of any continuance or repetition of such breach.
12. LIMITATION
12.1 The parties acknowledge and agree that no length of time of, or enjoyment by the
Licensee of the license for the Encroachment granted herein shall give any right, title
or interest to the Licensee or its successors in title, to the Property or any right to
maintain the Encroachment upon the Encroachment Area on the Property, or shall
deprive the Property Owner by the operation of any limitation period or otherwise of
any right to require the removal of the Encroachment or any restoration to the Property
to the satisfaction of the Property Owner at the Licensee's expense.
13. NOTICES
13.1 All notices or communications required or permitted hereunder shall be given by
registered or certified mail, email (subject to confirmation of receipt), fax (subject to
confirmation of transmittal) or courier, and addressed to the other party at the
addresses set forth below, or at such other addresses or to the attention of such other
individual as such party may from time to time specify for that purpose in a notice
similarly given:
To: 379650 ONTARIO LIMITED (Property Owner)
And To:
Municipality of Kincardine (Licensee)
1475 Concession 5
Kincardine, ON
N2Z 2X6
Phone: 519-396-3468
Fax: 519-396-1430
Email: clerk �kincardine.ca
14. GENERAL
14.1 This Agreement may be executed in one or more counterparts, each of which
when so executed and delivered shall be an original, and such counterparts shall
together constitute one and the same instrument. An executed counterpart of this
Agreement may be delivered by email transmission.
14.2 This Agreement constitutes the entire agreement among the parties with respect
to the subject matter hereof.
14.3 This Agreement is not transferable or assignable by the Licensee to any third
party without the prior written consent of the Property Owner. Any attempt to transfer or
assign any or all of the rights, duties or obligations of this Agreement by the Licensee,
without the prior written consent of the Property Owner is void.
14.4 The Property Owner hereby consents to the registration of this Agreement
together with any schedules hereto, upon the title to the Property, if applicable, and by
signing this Agreement hereby authorizes the Licensee's solicitor to register this
Agreement in the Bruce County Land Registry Office (LRO#3) without the necessity of
a signed Acknowledgment and Direction. The Property Owner shall have the
Agreement registered upon title to the Property, if applicable, and any costs associated
with the said registration shall be paid for by the Licensee as well as any further costs
incurred by the Property Owner, if any, as a result of the registration of any other
documents pertaining to this Agreement.
14.5 No waiver or modification of any provision of this Agreement is binding unless it
is in writing and signed by all the parties to this Agreement. No failure to exercise, and
no delay in exercising any right or remedy under this Agreement will be deemed to be
a waiver of that right or remedy. No waiver of any breach of any provision of this
Agreement will be deemed to be a waiver of any subsequent breach of that provision.
14.6 If any provision of this Agreement is or becomes illegal, invalid or unenforceable
in any jurisdiction, the illegality, invalidity or unenforceability of that provision will not
affect:
i. the legality, validity or enforceability of the remaining provisions of this
Agreement, or
iithe legality, validity or enforceability of that provision in any other jurisdiction.
14.7 The parties hereto agree to execute and deliver any further documents or
assurances necessary or desirable to give effect to the permission hereby granted.
14.8 This Agreement and everything herein contained shall be binding upon the
parties, their heirs, executors, administrators, successors and assigns.
14.9 The Licensee shall, at all times during the Term of this Agreement, be subject to
all laws, by-laws and regulations now or hereinafter enacted, to all statues, orders and
rules made or to be made by a lawfully constituted authority having jurisdiction therein.
14.10This Agreement shall be governed by and interpreted in accordance with the
laws of Ontario and the federal laws of Canada applicable in Ontario.
IN WITNESS WHEREOF the parties hereto have executed this agreement on
2022
379650 Ontario Limited
Per: �, ZL
r
Bruce Ransome, President
have authority to bind the corporation
Per:
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
Gerry Glover, Mayor
Roxana Baumann, Acting CAO
We have the authority to bind the Corporation.
Schedule "A"
Legal Description of Property:
PT LT 4-5 CON 14 BRUCE AS IN R318088 EXCEPT PT 2 3R5418; KINCARDINE,
PIN 33277-0022 (LT)
SCHEDULE "B"
Encroachment Area
SCHEDULE "C"
Concept Drawing of Gateway Sign
1
SOW NSh'bo
0,, -
TOWNSHIP OF
Proud Part of...
The Municipality of Kincardine
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1-
ACKNOWLEDGEMENT AND DIRECTION
TO: Oleksandr(Alex)Bondarenko
AND TO: The Ross Firm Professional Corporation
RE: The Corporation of the Municipality of Kincardine and 379650 Ontario Limited
Notice of Encroachment Agreement—Gateway Sign for the former Bruce
Township
PIN 33277-0022(LT)
Our File No.:2022-40009
This will confirm the following:
1. We have/I have reviewed the information set out below and attached and the information
is accurate.
2. You,your agent or employee are authorized and directed to sign, deliver, and/or register
electronically on my behalf the document(s) described in this Acknowledgment and
Direction as well as any other document(s)required to complete the transaction described
above.
3. You are hereby authorized to insert any information that may be required in the electronic
documents described in this Acknowledgment and Direction that may not be available to
you at the time of execution of this Acknowledgment and Direction.
4. The effect of the electronic documents described in this Acknowledgment and Direction
has been fully explained to us/me and we/I understand that we are/I am parties to and are
bound by the terms and provisions of these electronic documents to the same extent as if
we/I had signed these documents.
5. We are/I am, in fact, the parties named in the electronic documents described in this
Acknowledgment and Direction and I/we have not misrepresented our identities to you.
6. I/We hereby authorize you to make any minor, non-material alterations that may be
required by the Land Registry Office or any governmental agencies or governmental
authorities to effect certification of the electronic documents described in this
Acknowledgment and Direction by the Land Registry Office.
7. This Acknowledgment and Direction may be executed in counterpart and each such
counterpart shall, for all purposes, constitute one document binding on all parties hereto,
notwithstanding that all parties are not signatories to the same counterpart, provided that
each party has signed at least one counterpart.
8. Execution of the Acknowledgment and Direction by facsimile transmission or by e-mail
shall be binding upon each party hereto and upon the party so signing by facsimile or e-
mail transmission.
DESCRIPTION OF DOCUMENT: Notice of Encroachment Agreement
Date: ,2023 THE CORPORATION OF THE MUNICIPALITY OF
KINCARDINE
Kenneth Cram mm..
Signed with Consign()Cloud(2023/05 3) II I IIIII IIIIIIIIIII I IIIIIIIIIIIIII
Verify with veriflo.[om or Adobe Reader.
Per: .....................
Name: Kenneth Craig
Title: Mayor
JilleSigned with
e Bel lch omb tlr-Glaozier
Per: Verify with verifio.com or Adobe Reader.
Name: Jillene B ellchamber-Glazier
Title: CAO
We have the authority to bind the Corporation.
LRO# 3 Notice In preparation on 2023 01 24 at 14:05
This document has not been submitted and may be incomplete. yyyy mm dd Page 1 of 14
Properties
PIN 33277-0022 LT
Description PT LT 4-5 CON 14 BRUCE AS IN R318088 EXCEPT PT 2 3R5418;KINCARDINE
Address KINCARDINE
Consideration
Consideration $1.00
Applicant(s)
The notice is based on or affects a valid and existing estate,right,interest or equity in land
Name 379650 ONTARIO LIMITED
Acting as a company
Address for Service
A person or persons with authority to bind the corporation has/have consented to the registration of this document.
This document is not authorized under Power of Attorney by this party.
Party To(s) Capacity Share
Name THE CORPORATION OF THE MUNICIPALITY OF
KINCARDINE
Acting as a company
Address for Service 1475 Concession 5
R.R.#5
Kincardine,ON N2Z 2X6
This document is being authorized by a municipal corporation Kenneth Craig,Mayor and Jillene Bellchamber-Glazier,CAO.
Statements
This notice is pursuant to Section 71 of the Land Titles Act.
This notice is for an indeterminate period
Schedule: See Schedules
File Number
Applicant Client File Number: 2022-40009
Party To Client File Number: 2022-40009