HomeMy WebLinkAbout22 153 MacKay Encroachment Agreement (209 Birchwood) By-lawTHE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
BY-LAW
No. 2022 - 153
BEING A BY-LAW TO AUTHORIZE THE SIGNING OF AN AGREEMENT TO
PERMIT AN ENCROACHMENT ONTO MUNICIPAL PROPERTY
(209 Birchwood)
WHEREAS Section 11 (3) of The Municipal Act, S.O. 2001, c. 25, as amended,
provides that a lower-tier municipality may pass by-laws, respecting matters within
the sphere of jurisdiction of highways, including parking and traffic on highways;
AND WHEREAS Section 8 (1) and 9 of the Municipal Act, 2001 S.O. 2001, c. 25,
as amended, 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 John Hugh MacKay and Norma Anne MacKay are the registered
owner(s) of certain lands and premises legally described as LT 4 PL M2;
MUNICIPALITY OF KINCARDINE being PIN 33293-0102 (LT) - Roll No 41-08210-
005-01506 and known municipally as 209 Birchwood Avenue in the Municipality of
Kincardine in the County of Bruce;
AND WHEREAS The Corporation of the Municipality of Kincardine is the registered
owner of the lands legally described as PCL STREETS-1 SEC M2; BLK L PL M2;
KINCARDINE being PIN 33293-0142 (LT) and SHORE RDAL KINCARDINE BTN
RDAL BTN LOT 50 & 51 CON A & RDAL BTN LOT 30 & 31 CON A; KINCARDINE
being PIN 33293-0641 (LT);
AND WHEREAS the Council of The Corporation of the Municipality of Kincardine
has been requested to enter into an agreement to allow encroachments on
municipal property;
NOW THEREFORE the Council of The Corporation of the Municipality of
Kincardine ENACTS as follows:
1. The owners of the lands legally described as LT 4 PL M2; MUNICIPALITY
OF KINCARDINE being PIN 33293-0102 (LT) -Roll# 41-08210-005-01506,
and known municipally as 209 Birchwood Avenue, is hereby allowed to
maintain and use the portion of the encroachment upon municipal property
subject to the Encroachment Agreement attached as Schedule ‘A’ to this by-
law.
2. The encroachment includes an accessory building approximately 4.5 square
meters 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.
Page 2 of 2
MacKay Encroachment Agreement (209 Birchwood) By-law
By-law No, 2022 - 153
3. That the Mayor and Chief Administrative Officer be authorized and directed to
execute, on behalf of the Council of The Corporation of the Municipality of
Kincardine, the Encroachment Agreement with John Hugh MacKay and Norma
Anne MacKay.
4. This By-law may be cited as the “MacKay Encroachment Agreement (209
Birchwood) By-law”.
READ a FIRST and SECOND TIME this 12th day of September, 2022.
READ a THIRD TIME and FINALLY PASSED this 12th day of September, 2022.
Mayor Clerk
ENCROACHMENT AGREEMENT THIS AGREEMENT made this 1�f - day of S p Pfl / V , 2022
BETWEEN:
John Hugh MacKay
and
Norma Anne MacKay
(the "Leasee")
— and —
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
(the "Municipality")
WHEREAS John Hugh MacKay and Norma Anne MacKay are the registered owner(s) of
certain lands and premises legally described as LT 4 PL M2; MUNICIPALITY OF
KINCARDINE being PIN 33293-0102 (LT) - Roll No 41-08210-005-01506 and known
municipally as 209 Birchwood Avenue in the Municipality of Kincardine in the County of
Bruce;
AND WHEREAS John Hugh MacKay and Norma Anne MacKay own an accessory
building placed on the subject lands and requests permission through an encroachment
agreement to use a portion of Municipal property to house the accessory building.
AND WHEREAS the Municipality owns the lands legally described as PCL STREETS-1
SEC M2; BLK L PL M2; KINCARDINE being PIN 33293-0142 (LT) and SHORE RDAL
KINCARDINE BTN RDAL BTN LOT 50 & 51 CON A & RDAL BTN LOT 30 & 31 CON A;
KINCARDINE being PIN 33293-0641 (LT) in which the owner wishes to enter into this
encroachment agreement for the use of the lands, more particularly described as Parts 1
& 2 on the draft Reference Plan attached hereto as Schedule "A" of this agreement;
AND WHEREAS the Leasee owns the accessory building that encroaches upon the
municipal property approximately 4.5 square metres more or less as shown on the draft
Reference Plan attached as Schedule "A", and referred to as "the Encroachment";
AND WHEREAS the Municipality agrees to permit the Encroachment (to continue) upon
the municipal property on certain terms and conditions as set out within this Agreement;
IN CONSIDERATION of other good and valuable consideration and the sum of $2.00 of
lawful money of Canada now paid by the Leasee to the Municipality (the receipt whereof is
hereby acknowledged) the Municipality grants, subject to the provisions set forth, to the
Leasee, an Agreement to permit the Encroachment upon the lands of the Municipality,
subject to the following provisions:
1. The term of this Agreement shall expire on the earlier of:
(i)The date of removal of the Encroachment; or
(ii) The date of the sale or transfer of the lands described in Schedule "A"
unless the Municipality at the request of the purchaser or transferee of the
lands, approved an extension and assignment of this agreement and the
purchaser or transferee has executed the extension and assignment
agreement prepared by the Municipality.
2. In the event of the Municipality at any time enacting a by-law levying a tax upon all
encroachments of buildings or other structures over, under or upon any highway,
street, lane, road allowance or easement in the Municipality, the Leasee shall pay
forthwith on demand whatever tax may be levied in respect of the Encroachment
upon the municipal property.
3. The Leasee shall at its own cost, charge and expense and to the satisfaction of the
Municipality:
(i) Keep and maintain the Encroachment in a good and proper state of repair
and safety;
(ii) Make no additions or modifications to the Encroachment which are not
authorized or contemplated by this agreement; and
(iii) Comply with such further and additional requirements, as may be required
by the Municipality, acting reasonably.
4. The Leasee agrees to indemnify and hold harmless the Municipality 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 Municipality may incur, otherwise than by
reason of their own negligence or willful misconduct, as a result of or arising out of
or in relation to any breach of the terms of this Agreement, or the Municipality's
own negligence or willful misconduct.
5. The Leasee shall put in effect and maintain in its name, at its expense, all the
necessary insurance that would be considered appropriate for a prudent tenant
undertaking this type of operation for the period during which the Agreement is in
effect with insurers acceptable to the Municipality, including:
(i) General Liability Insurance, for third party bodily injury, personal injury and
property damage to an inclusive limit of not less than Two Million Dollars
($2,000,000.00) per occurrence. The policy shall include:
a) The Corporation of the Municipality of Kincardine as an additional
insured;
b) A thirty (30) day written notice of cancellation
(ii) The Leasee shall provide the Municipality with a valid Certificate of
Insurance as evidence of the above coverages upon signing the Agreement.
The Leasee shall provide the Municipality with any renewal replacement
certificates as may be necessary during the term of the Agreement.
6. Where, in the opinion of the Municipality, it is necessary to remove or alter the
Encroachment or part thereof, the Leasee shall, at its own cost, charge and
expense, and to the satisfaction of the Municipality, alter or remove the
Encroachment or any part thereof from the municipal property, and restore the
affected area upon receiving notice in writing from the Municipality to do,
without being entitled to any compensation whatsoever for such alteration or
removal and restoration. If the Leasee neglects, refuses or fails so to do
within 90 days of receiving the aforesaid notice to alter or remove, then the
Municipality may alter the Encroachment or parts thereof from the municipal
property, as determined by the Municipality at the cost, charge and expense of
the Leasee and the certificate of the Municipality as to the cost of such
alteration or removal and restoration shall be final and binding upon the
Leasee and the Municipality may recover such costs from the Leasee in like
manner as taxes.
7. Nothing contained herein shall be construed as giving to the Leasee anything more
than permission to erect and maintain the Encroachment until such time as this
agreement expires or is terminated or the removal of such Encroachment may be
required as provided.
8. The parties acknowledge and agree that no length of time of, or enjoyment by the
Leasee of the permission granted herein shall ensure to, or give any right, title or
interest to the Leasee or its successors in title, of the municipal property or any
right to maintain the proposed Encroachment upon the municipal property, or shall
deprive the Municipality by the operation of any limitation period or otherwise of any
right to require the removal of the Encroachment or any restoration of the municipal
property to the satisfaction of the Municipality at the Leasee's expense.
9. The Leasee hereby covenants and agrees that at the time that the Encroachment
is removed in whole or in part, or is in need of replacement, and in any event, upon
the expiry or termination of this agreement, that the works formerly comprising such
Encroachment shall be removed, at the Leasee's sole expense, so that they are
located entirely off the municipal property and at such time, this agreement shall
become null and void and be of no further effect.
10. The Leasee covenants and agrees that the Municipality, 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 currency of this agreement, to enter in and upon the
lands described in Schedule "A" or any part thereof, with all necessary workers,
plant, equipment and material for the purpose of inspecting, altering or removing
the Encroachment from the municipal property in accordance with this agreement.
Such inspection shall not free or relieve the Leasee in any way whatsoever from
the liability under the covenant set out to keep and maintain the Encroachment in
good and proper repair and condition.
11. The parties acknowledge and agree that this Agreement does not in any way
whatsoever diminish the rights of the Municipality, 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
municipal property for the purpose of constructing, repairing, maintaining, replacing
or removing any sewers, mains, culverts, drains, water pipes, poles, wires or
otherwise underground services and installations and appurtenances thereto. The
Leasee shall not be entitled to any damages or compensation by reason of the
exercise of the Municipality or utility company's rights contained in this clause and
the Leasee at its own expense shall carry out such alteration or removal of the
Encroachment as the Municipality may direct pursuant to the exercise of the
Municipality's or utility company's rights.
12. The Leasee agrees that any and all costs, sums and expenses paid, incurred or
sustained by the Municipality as herein provided shall form and constitute a charge
or lien on the lands set out in Schedule "A" attached hereto, until fully paid.
13. The Leasee covenants and agrees not to assign or to transfer this agreement to
any successor or assignee of the premises described in Schedule "A" without the
consent of the Municipality and if such assignment is agreed the Leasee will obtain
from such successor or assignee a covenant in favour of the Municipality that the
successor or assignee will be bound by all of the terms and conditions of this
agreement from and after the date of its assignment as aforesaid, it being the
intention that the owner from time to time of the lands and premises described in
Schedule "A" shall have the benefit of and be liable for performance of the
obligations contained in this agreement.
14. The Leasee agrees that for the purpose of this agreement, notice may be given to
the Leasee by mailing the same, by prepaid registered mail, addressed to the
Leasee at its address as last known to the Municipality pursuant to the most recent
revised assessment rolls. Such notice shall be deemed to have been received by
the Leasee 7 days following the date when it was handed to the post office.
15. The Leasee agrees to pay to the Municipality prior to the execution of this
agreement, the sum of $250.00, being administration fees to the Municipality to
defray the cost of preparing and administering this agreement, the sum of$500.00,
being the agreement deposit fee, and shall further pay the municipality an annual
fee of $100.00 during each calendar year of the term of this agreement. The
payment is to be made annually on the property tax bills.
16. The Leasee consents and authorizes the registration and/or deposit of this
Agreement and any of its Schedules by the Municipality's Solicitors upon title to the
"subject lands" in the Registry Office for the County of Bruce, which shall be at the
sole discretion of the Municipality. The Owner agrees to pay any and all costs
associated with the registration and/or depositing of this Agreement or any other
documents pertaining to this Agreement.
15. The Leasee agrees to pay to the Municipality prior to the execution of this
agreement, the sum of $250.00, being administration fees to the Municipality to
defray the cost of preparing and administering this agreement, the sum of
$500.00, being the agreement deposit fee, and shall further pay the municipality
an annual fee of $100.00 during each calendar year of the term of this
agreement. The payment is to be made annually on the property tax bills.
16. If any notice is required to be given to either parties of this Agreement, such
notice shall be sent by registered mail, registered courier or delivered
personally to:
Leasee: John and Norma MacKay
209 Birchwood Ave
RR#2 Tiverton, ON NOG 2T0
Municipality: The Corporation of the Municipality of Kincardine
1475 Concession 5,
RR#5 Kincardine, ON N2Z 2X6
17. The Leasee shall, at all times during the life of this encroachment 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.
18. This agreement is solely for the benefit of the parties hereto and is not
transferable to, or enforceable by, any heirs, executors, successors, assigns,
nor transferable to any subsequent owners or tenants of the property.
19. This agreement shall be read with all changes of gender or number required by
the context.
IN WITNESS WHEREOF the parties have set their hands and corporate seals attested
by the hands of their respective officers duly authorized in that behalf.
0417606W 121.11711.) /r)/
Witness Date J Hugh acKay
—7/C >)/1 70- V)Z
itness Date Norma Anne Mac /late
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
Per:
Ger Glover, Mayor
Per:
Roxana Baumann, Acting CAO
We have the authority to bind the
Corporation.
I
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I
LRO# 3 Notice Receipted as BR190702 on 2022 12 21 at 10:09
The applicant(s)hereby applies to the Land Registrar. yyyy mm dd Page 1 of 7
Properties
PIN 33293-0641 LT
Description SHORE RDAL KINCARDINE BTN RDAL BTN LOT 50&51 CON A&RDAL BTN LOT 30
&31 CON A;KINCARDINE
Address KINCARDINE
PIN 33293-0102 LT
Description LT 4 PL M2;MUNICIPALITY OF KINCARDINE
Address 9 BIRCHWOOD AVE
KINCARDINE
PIN 33293-0143 LT
Description PCL STREETS-1 SEC M2;BLK L PL M2;KINCARDINE
Address KINCARDINE
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 MUNICIPLAITY OF KINCARDINE
Address for Service 1475 Concession 5,
RR#5 Kincardine,ON N2Z 2X6
This document is not authorized under Power of Attorney by this party.
This document is being authorized by a municipal corporation Gerry Glover,Mayor and Roxana Baumann,Acting CAO.
Party To(s) Capacity Share
Name MACKAY,JOHN HUGH
Address for Service 209 Birchwood Ave
RR#2 Tiverton,ON NOG 2T0
This document is not authorized under Power of Attorney by this party.
Name MACKAY,NORMA ANNE
Address for Service 209 Birchwood Ave
RR#2 Tiverton,ON NOG 2T0
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
I Tammy Grove-McClement solicitor make the following law statement the land subject to the encroachment is PIN 33293-0143,not PIN
33293-0142 as identified in the Encroachment Agreement attached hereto. This was a typographical error..
Signed By
Tammy Wynn Grove-McClement 100-144 Courthouse Square acting for Signed 2022 12 21
Goderich Applicant(s)
N7A 1 M9
Tel 519-524-5532
Fax 519-524-8438
1 have the authority to sign and register the document on behalf of the Applicant(s).
Submitted By
THE ROSS FIRM PC 100-144 Courthouse Square 2022 12 21
Goderich
N7A 1 M9
Tel 519-524-5532
Fax 519-524-8438
LRO# 3 Notice Receipted as BR190702 on 2022 12 21 at 10:09
The applicant(s)hereby applies to the Land Registrar. yyyy mm dd Page 2 of 7
Fees/Taxes/Payment
Statutory Registration Fee $69.00
Total Paid $69.00
File Number
Applicant Client File Number: 2022-39759
LRO# 3 Application(General) Receipted as BR190771 on 2022 12 22 at 11:43
The applicant(s)hereby applies to the Land Registrar. yyyy mm dd Page 1 of 1
Properties
PIN 33293-0641 LT
Description SHORE RDAL KINCARDINE BTN RDAL BTN LOT 50&51 CON A&RDAL BTN LOT 30
&31 CON A;KINCARDINE
Address KINCARDINE
Applicant(s)
Name THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
Address for Service 1475 Concession 5
Kincardine,ON N2Z 2X6
This document is not authorized under Power of Attorney by this party.
This document is being authorized by a municipal corporation Gerry Glover,Mayor and Roxana Baumann,Director of Corporate
Services.
Statements
I Gerry Glover,Mayor and Roxana Baumann,Director of Corporate Services of The Corporation of the Municipality of Kincardine having a
legal interest in the lands hereby apply under section 75 of the Land Titles Act to have the register for the said PIN amended by:BEING
ENTERED AS OWNER
I Tammy Grove-McClement solicitor make the following law statement:I am the Solicitor for The Corporation of the Municipality of
Kincardine,the Applicant,and as such have knowledge of the matters herein and I hereby state:
1.SHORE RDAL KINCARDINE BTN RDAL BTN LOT 50&51 CON A&RDAL BTN LOT 30&31 CON A;KINCARDINE is an original
shore road allowance made by a Crown Surveyor and is located within the Municipality of Kincardine and therefore by virtue of Section
26.4 of the Municipal Act,2001,it is a highway and The Corporation of the Municipality of Kincardine has jurisdiction over it.
2.Pursuant to Section 30 of the Municipal Act,2001,a highway is owned by the Municipality that has jurisdiction over it subject to any
rights reserved by a person who dedicated the highway or any interest in the land held by any other person.There is no such reserved
rights or interests held by any other person.
3.The Corporation of the Municipality of Kincardine is therefore the owner of the road described in PIN 33293-0641 (LT).
Signed By
Tammy Wynn Grove-McClement 100-144 Courthouse Square acting for Signed 2022 12 22
Goderich Applicant(s)
N7A 1 M9
Tel 519-524-5532
Fax 519-524-8438
1 have the authority to sign and register the document on behalf of the Applicant(s).
Submitted By
THE ROSS FIRM PC 100-144 Courthouse Square 2022 12 22
Goderich
N7A 1 M9
Tel 519-524-5532
Fax 519-524-8438
Fees/Taxes/Payment
Statutory Registration Fee $69.00
Total Paid $69.00
File Number
Applicant Client File Number: 2022-39998
LRO# 3 Application(General) Receipted as BR190773 on 2022 12 22 at 11:45
The applicant(s)hereby applies to the Land Registrar. yyyy mm dd Page 1 of 1
Properties
PIN 33293-0143 LT
Description PCL STREETS-1 SEC M2;BLK L PL M2;KINCARDINE
Address KINCARDINE
Applicant(s)
Name THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
Address for Service 1475 Concession 5
Kincardine,ON N2Z 2X6
This document is not authorized under Power of Attorney by this party.
This document is being authorized by a municipal corporation Gerry Glover,Mayor and Roxana Baumann,Acting CAO.
Statements
I Gerry Glover,Mayor and Roxana Baumann,Acting CAO of The Corporation of the Municipality of Kincardine having a legal interest in
the lands hereby apply under section 75 of the Land Titles Act to have the register for the said PIN amended by:BEING ENTERED AS
OWNER.
I Tammy Grove-McClement solicitor make the following law statement:I am the Solicitor for The Corporation of the Municipality of
Kincardine,the Applicant,and as such have knowledge of the matters herein and I hereby state:1)PCL STREETS-1 SEC M2;BLK L PL
M2;KINCARDINE is a road on a registered plan of Subdivision and is located within the Municipality of Kincardine and therefore by virtue
of Section 26.5 of the Municipal Act,2001,it is a highway and The Corporation of the Municipality of Kincardine has jurisdiction over it.2)
Pursuant to Section 30 of the Municipal Act,2001,a highway is owned by the Municipality that has jurisdiction over it subject to any rights
reserved by a person who dedicated the highway or any interest in the land held by any other person.There is no such reserved rights or
interests held by any other person.3)The Corporation of the Municipality of Kincardine is therefore the owner of the road described in PIN
33293-0143(LT).
Signed By
Tammy Wynn Grove-McClement 100-144 Courthouse Square acting for Signed 2022 12 22
Goderich Applicant(s)
N7A 1 M9
Tel 519-524-5532
Fax 519-524-8438
1 have the authority to sign and register the document on behalf of the Applicant(s).
Submitted By
THE ROSS FIRM PC 100-144 Courthouse Square 2022 12 22
Goderich
N7A 1 M9
Tel 519-524-5532
Fax 519-524-8438
Fees/Taxes/Payment
Statutory Registration Fee $69.00
Total Paid $69.00
File Number
Applicant Client File Number: 2022-40372