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HomeMy WebLinkAbout05 093 EN Agree McFarlan e e e e " I ¡ THE CORPORATION OF THE MUNICIPALITY OF KINCAfINE KBT I BY-LAW NO. 2005 - 093 ! I BEING A BY-LAW TO AUTHORIZE THE SIGNING OF AN AGREEMENT TO PERMIT AN ENCROACHMENT ONTO MUNICIPAL PRc >PERTY (33 McFarlan Road) I WHEREAS Section 9 (3) of The Municipal Act, 2001, S.D. 2001, c. 25, as amended, authorizes municipalities to pass by-laws respecti~g matters and imposing conditions as a requirement for obtaining permits; I AND WHEREAS the Corporation of the Municipality of Kincar<Jine has been requested to enter into an agreement to allow encroachments on municipal . , property. ¡ , NOW THEREFORE the Corporation of the Municipality of Kinc~rdine ENACTS as follows: : 1. The owner of Lot 32, Lake Range, (former Township of B~ce) in the Municipality of Kincardine, known municipally as 33 McFa an Road, is hereby allowed to maintain and use the portion of the enc achment upon municipal property subject to the Encroachment Agreeme~t attached to this by-law. 2. The encroachment includes a frame cottage an~' other minor improvements as noted on Schedule "A" of the agreem t and shall be subject to the terms and conditions of the encroach ent agreement attached to this by-law. I I ¡ That the Mayor and CAD be authorized to sign, on l behalf of The Municipality of Kincardine the Encroachment Agreemenf with Kenneth McFarlan. ' 3. I I 4. This by-law may be cited as the "McFartan Encroachment IAgreement (33 McFartan Road) By-law". I READ a FIRST, SECOND and THIRD time and DEEMED TO B~ PASSED this 6th day of July, 2005. ¡ (/ ßJk-£ k Maýor Clerk < ... chedu1e".1...." ~w ~ ENCROACHMENT~EEMENT~Œ THIS AGREEMENT made this? day Of» , 2005 BElWEEN: KENNETH MCFARLAN (the "Licensee") -and- THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the "Municipality") The Licensee owns a cottage on the road allowance Range, known municipally as 33 McFarlan Road, (former Roll No. 26-5-025 in the Municipality of Kincardine. 2. The Municipality owns the public highway known as McFarl n Road, referred to as the "Road". 1. t of Lot 32, Lake ownship of Bruce) 3. A framed cottage and other minor improvements as no on Schedule "A" owned or controlled by the Licensee, encroaches upon the Road. The cottage is entirely on the road allowance, more particularty sh n on the sketch attached as Schedule "A" and referred to as the encroachm nt. 4. The Municipality agrees to permit the Encroachment to con nue upon the Road on certain terms and conditions as set out. IN CONSIDERATION of other good and valuable conside ion and the sum of $2.00 of lawful money of Canada now paid by the Licensee to e Municipality (the receipt whereof is hereby acknowledged) the Municipality gra ts, subject to the provisions set forth, to the Licensee, a Licence to permit the Enc chment upon the lands of the Municipality, subject to the following provisions: 1. The term of this Licence shall expire on the earlier of: (i) One (1) year from the date of passage of this agree nt, provided that, at the expiry of the term and at the Licensee's req est, Council of the Municipality may, at its discretion, extend the term to such period of time and on such terms and conditions as it deems advisa Ie; (ii) The date of removal of the Encroachment; or (iii) The date of the sale or transfer of the lands desc bed in paragraph 1 unless the Municipality at the request of the purch ser or transferee of the lands, approved an extension and assignment 0 this agreement and the purchaser or transferee has executed the exten ion and assignment agreement prepared by the Municipality. ...2/ , ~ McFarlan Encroachment Agreement 2. In the event of the Municipality at any time enacting a by-Ia levying a tax upon all encroachments of buildings or other structures over, nder or upon any highway, street, lane, road allowance or easement in th Municipality, the Licensee shall pay forthwith on demand whatever tax may levied in respect of the Encroachment upon the municipal property. 3. The Licensee shall at its own cost, charge and expense an to the satisfaction of the Municipality: (i) Keep and maintain the Encroachment in a good d proper state of repair and safety; (ii) Make no additions or modifications to the Encroach ent which are not authorized or contemplated by this agreement; and (iii) Comply with such further and additional require ents, as may be required by the Municipality, acting reasonably. 4. The Licensee shall at all times fully indemnify and ave harmless the Municipality against all actions, suits, claims and demand whatsoever which may be brought against or made upon the Municipality and rom and against all loss, costs, damages, charges and expenses whatsoe er which may be incurred, sustained or paid by the Municipality for or by rea n of or on account of the permission hereby granted to the Licensee or t e exercise by the Licensee of such permission or the erection and intenance of the Encroachment and appurtenances thereto or anything in any matter relating thereto, and the Licensee hereby grants to the Munici lity full power and authority to settle any such actions, suits, claims or deman s on such terms as the Municipality may deem advisable and the Licensee he y covenants and agrees with the Municipality to forthwith pay to the Munici lity on demand all moneys paid by the Municipality in pursuance of any such settlement and also such sum as shall represent the reasonable costs of th Municipality or its solicitors in defending or settling any such actions, suits, laims or demands, based on a solicitor and own client basis. 5. The Licensee covenants and agrees to provide the unicipality with a certificate of general liability insurance, on or befo execution of this agreement, covering the Licensee and the Municipality in espect of the lands subject to the Encroachment during the term of this greement and any extensions authorized by the Council of the Municipality to he extent of not less than $1,000,000.00 inclusive of all injuries or death to pe n and damage to property of others arising from anyone occurrence. The M nicipality is to be an added insured under the insurance policy. Without limiting the generality of the foregoing, such public liability insurance shall contain rovisions for cross- liability and severability of interests and further that th policy will not be changed or amended in any way or cancelled until 90 da after written notice of such change or cancellation shall have been given to th Municipality. 6. Where, in the opinion of the Municipality, it is necessary t remove or alter the Encroachment or part thereof, the Licensee shall, at its n cost, charge and expense, and to the satisfaction of the Municipality, Iter or remove the Encroachment or any part thereof from the municipal pro rty, and restore the affected area upon receiving notice in writing from th Municipality to do, without being entitled to any compensation whatsoever r such alteration or removal and restoration. If the Licensee neglects, refu s 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 the from the municipal property, as determined by the Municipality at the cost, c arge and expense of the Licensee and the certificate of the Municipality as to the cost of such alteration or removal and restoration shall be tinal a binding upon the Licensee and the Municipality may recover such costs fro the Licensee in like manner as taxes. ..,3/ , ~ McFarlan Encroachment Agreement 7. Nothing contained herein shall be construed as giving to th Licensee anything more than permission to erect and maintain the Encroach ent 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 f, or enjoyment by the Licensee of the permission granted herein shall enure t ,or give any right, title or interest to the Licensee or its successors in tit , of the municipal property or any right to maintain the proposed Encr chment upon the municipal property, or shall deprive the Municipality by th operation of any limitation period or otherwise of any right to require t e removal of the Encroachment or any restoration of the municipal property t the satisfaction of the Municipality at the Licensee's expense. 9. The Licensee hereby covenants and agrees that at he time that the Encroachment is removed in whole or in part, or is in need replacement, and in any event, upon the expiry or termination of this agree nt, that the works formerly comprising such Encroachment shall be remove , at the Licensee's sole expense, so that they are located entirely off the muni pal property and at such time, this agreement shall become null and void a d be of no further effect. 10. The Licensee covenants and agrees that the Municipality and its respective officers, servants, workers, employees, agents and contract rs under its control or supervision or any of them shall have the right from tim to time and at all reasonable times during the currency of this agreement, t enter in and upon the lands described in paragraph 1 or any part thareof, with all necessary workers, plant, equipment and material for the purpose of in pecting, altering or removing the Encroachment from the municipal property in ccordance with this agreement. Such inspection shall not free or relieve the censee 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 Licence d not in any way whatsoever diminish the rights of the Municipality, or y gas, telephone, telegraph, electric light or other public utility company, thei respective officers, servants, workers, employees, agents and contractors, t enter at all times upon the municipal property for the purpose of con tructing, repairing, maintaining, replacing or removing any sewers, mains, cu verts, drains, water pipes, poles, wires or otherwise underground services a d installations and appurtenances thereto. The Licensee 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 Licensee at its own expense shall carry out such alteration or removal of the Encroachment as t e Municipality may direct pursuant to the exercise of the Municipality's or utility mpany's rights. 12. The Licensee agrees that any and all costs, sums and exp nses paid, incurred or sustained by the Municipality as herein provided shall f rm and constitute a charge or lien on the lands set out in paragraph 1, until fully aid. 13. The Licensee covenants and agrees not to assign or to tra sfer this agreement to any successor or assignee of the premises described in aragraph 1 without the consent of the Municipality and if such assignment is greed the Licensee will obtain from such successor or assignee a covena t in favour of the Municipality that the successor or assignee will be bound b all of the terms and conditions of this agreement from and after the date 0 its assignment as aforesaid, it being the intention that the owner from time to me of the lands and premises described in paragraph 1 shall have the benefit of and be liable for performance of the obligations contained in this agreement. ...4/ , . McFartan Encroachment Agreement 14. The licensee agrees that for the purpose of this agreem nt, notice may be given to the Licensee by mailing the same, by prepai registered mail, addressed to the Licensee at its address as last known 0 the Municipality pursuant to the most recent revised assessment rolls. S ch notice shall be deemed to have been received by the Licensee 7 days folio ing the date when it was handed to the post office. 15. The Licensee agrees to pay to the Municipality an annual t of $100.00 for the term of this agreement. The payment is to be made on the p operty tax bill. 16. The Licensee shall, at all times during the life of this lice se agreement, be subject to all laws, by-laws and regulations now or herein er enacted, to all statutes, orders and rules made or to be made by a wfully constituted authority having jurisdiction therein. 17. This agreement and everything herein contained shall described in paragraph 1 and inure to the benefit of and b parties, their heirs, executors, administrators, successors an n with the lands binding upon the assigns. 18. This agreement shall be read with all changes of gender or umber required by the context. IN WITNESS WHEREOF the parties have set their hands and corp rate seals attested by the hands of their respective officers duly authorized in that beh If. ~ ~Jir Kenneth McFartan THE CORPORATION OF THE MUNICIPALITY OF KINCARDIN Per: Mayor CAD , ' .- . /~ ~. r p ~ Q.. (/) C ð" L. (1) n n- n- o fT1 ~ n '1 o p n :Y 3 (1) ~ n- J> (0 '1 (1) (1) 3 (1) ~ n- '" ' SCHEDULE n . ---------- ß to C ~ ~ .. ,., / /